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Full text of "North Carolina Register v.13 no. 23 (6/1/1999)"

NORTH CAROLINA 

REGISTER 



M^ 1 1999 



¥.;■:.: 



VOLUME 13 • ISSUE 23 • Pages 1896 - 1979 



June 1, 1999 



IN THIS ISSUE 

Executive Orders 

Labor - OSH Permanent Variance Filing 

Voting Rights Letters 

Agriculture 

Environment and Natural Resources 

Foresters, Board of Registration 

Health and Human Services 

Rules Review Commission 

Contested Case Decisions 



PUBLISHED BY 

The Office of Administrative Hearings 
Rules Division 
PO Drawer 27447 
Raleigh, NC 27611-7447 
Telephone (919) 733-2678 
Fax (919) 733-3462 



This publication is printed on permanent, acid-free paper in compliance with U.S. 125- 11.13 



For those persons that have questions or concerns regarding the Administrative Procedure Act or any of it^ 
components, consult with the agencies below. The bolded headings are typical issues which the giveilL 
agency can address, but are not inclusive. 

Rule Notices, Filings, Register, Deadlines, Copies of Proposed Rules, etc. 

Office of Administrative Hearings 

Rules Division 

Capehart-Crocker House (9 1 9) 733-2678 

424 North Blount Street (9 1 9) 733-3462 FAX 

Raleish, North Carolina 27601-281 7 



contact: Molly Masich, Director APA Services 
Ruby Creech, Publications Coordinator 



Fiscal Notes & Economic Analysis 

Office of State Budget and Management 

1 1 6 West Jones Street 

Raleigh, North Carolina 27603-8005 

contact: Warren Plonk, Economist III 



Rule Review and Legal Issues 

Rules Review Commission 
1307 Glenwood Ave., Suite 159 
Raleigh, North Carolina 27605 

contact: Joe DeLuca Jr., Staff Director Counsel 
Bobby Bryan. Staff Attorney 



mmasich@oah.state.nc.us 
rcreech@oah.state.nc.us 



(919)733-7061 
(919) 733-0640 FAX 

wplonk@osbm.state.nc.us 



(919)733-2721 
(919) 733-9415 FAX 



Legislative Process Concerning Rule-making 

Joint Legislative Administrative Procedure Oversight Committee 

545 Legislative Office Building 

300 North Salisbury Street (919) 733-2578 

Raleigh, North Carolina 276 1 1 (919)71 5-5460 FAX 



contact: Mary Shuping, Staff Liaison 



marys@ms.ncga.state.nc.us 



County and Municipality Government Questions or Notification 

NC Association of County Commissioners 

2 1 5 North Dawson Street (919)71 5-2893 

Raleigh. North Carolina 27603 

contact: Jim Blackburn or Rebecca Troutman 



I 



NC League of Municipalities 
215 North Dawson Street 
Raleigh, North Carolina 27603 

contact: Paula Thomas 



(919)715-4000 



i 



This puhlicution is primed on permanent, acid-free paper in compliance with G.S. 125-1 1. 13 



NORTH CAROLINA 
REGISTER 



IN THIS ISSUE 




EXECUTIVE ORDERS 

Executive Order 150.. 



II. IN ADDITION 

LABOR- OSH - Permanent Variance Filing 
Voting Rights Letters 



in. 



Volume 13, Issue 23 
Pages 1896 -1979 



June 1, 1999 



This issue contains documents officially filed 
through May 10, 1999. 



IV. 



Office of Administrative Hearings 

Rules Division 

424 North Blount Street (27601 ) 

PO Drawer 27447 

Raleigh, NC 2761 1-7447 

(919)733-2678 

FAX (919) 733-3462 



Julian Mann III, Director 

Camille Winston. Deputy Director 

Molly Masich, Director of APA Services 

Ruby Creech, Publications Coordinator 

Jean Shirley, Editorial Assistant 

Linda Dupree, Editorial Assistant 

Jessica Flowers, Editorial Assistant 



1896- 1897 



1898 
1899- 1900 



RULE-MAKING PROCEEDINGS 
Agriculture 

Veterinary Division 1901 

Environment and Natural Resources 

Environmental Management Commission ... 1901 - 1928 
Health Services -Water Treatment Facility 

Operators Certification Board 1928 

Wildlife Resources Commission 1928 



PROPOSED RULES 

Environment and Natural Resources 

Coastal Management 

Environmental Management Commission 
Licensing Boards 
Foresters, Board of Registration 



1937- 1942 
1929- 1937 

1942- 1945 



V. TEMPORARY RULES 
Agriculture 

Veterinary Division 1946 - 1947 

Health and Human Services 

Mental Health, Developmental Disabilities 

and Substance Abuse Services 1 947 - 1 948 

VL RULES REVIEW COMMISSION 1949-1953 

VIL CONTESTED CASE DECISIONS 

Index to ALJ Decisions 1954 - 1966 

Text of Selected Decisions 

98 DST 0967 1967 - 1971 

97 OSP 1222 1972 - 1977 

98 OSP 1380 1978 - 1979 

VIIL CUMULATIVE INDEX 1-87 



\orih Carolina Register is published semi-monthl> for %\95 per year by the Ofilce of Administrative Hearings. 424 North Blount Street. Raleigh. NC 
27601 (ISSN 1 5200604 1 to mail at Penodicals Rates IS paid at Raleigh. NC POSTMASTER: Send Address changes to the Vort/; Caro//ra /?eg/j;(?r. 
PO Drauer 27447. Raleieh. NC 2761 1-7447 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



The North Carolina Administrative Code iXCAC) has Jour major subdivisions of rules. Two of these, titles and ehapters. 
are mandatory. The major subdivision of the NCAC is the title. Each major department in the North Carolina executive 
branch of government has been assigned a title number. Titles are further broken doM'n into chapters which shall be 
numerical in order. The other two. subchapters and sections are optional subdivisions to be used by agencies when 
appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 



TITLE 



DEPARTMENT 



LICENSING BOARDS 



CHAPTER 



1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Athletic Trainer Examiners 


3 


4 


Commerce 


Auctioneers 


4 


5 


Correction 


Barber Examiners 


6 


6 


Council of State 


Certified Public Accountant Examiners 


8 


7 


Cultural Resources 


Chiropractic Examiners 


10 


8 


Elections 


Employee Assistance Professionals 


11 


9 


Governor 


General Contractors 


12 


10 


Health and Human Services 


Cosmetic Art Examiners 


14 


11 


Insurance 


Dental Examiners 


16 


12 


Justice 


Dietetics/Nutrition 


17 


13 


Labor 


Electrical Contractors 


18 


14A 


Crime Control & Public Safet\' 


Electrolysis 


19 


15A 


Environment and Natural Resources 


Foresters 


20 


16 


Public Education 


Geologists 


21 


17 


Revenue 


Hearing Aid Dealers and Fitters 


22 


18 


Secretarv' of State 


Landscape Architects 


26 


19A 


Transportation 


Landscape Contractors 


28 


20 


Treasurer 


Marital and Family Therapy 


31 


*21 


Occupational Licensing Boards 


Medical Examiners 


32 


22 


Administrative Procedures (Repealed) 


Midwifery Joint Committee 


33 


23 


Community Colleges 


Mortuary Science 


34 


24 


Independent Agencies 


Nursing 


36 


25 


State Personnel 


Nursing Home Administrators 


37 


26 


Administrative Hearings 


Occupational Therapists 


38 


27 


NC Slate Bar 


Opticians 


40 






Optometry 


42 






Osteopathic Examination & Reg. (Repealed) 


44 






Pastoral Counselors. Fee-Based Practicing 


45 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing. Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Psychology Board 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Soil Scientists 


69 






Speech & Language Pathologists & Audiologists 


64 






Substance Abuse Professionals 


68 






Therapeutic Recreation Certification 


65 






Veterinarv Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



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C_-3 



EXECUTIVE ORDERS 



EXECUTIVE ORDER NO. 150 
SUPPORT FOR HISTORICALLY 
UNDERUTILIZED BUSINESSES 

WHEREAS, it is North Carolina's collective expectation that 
all citizens of the state will be given equal opportunities to 
participate in providing State government with the goods and 
services it requires; and 

WHEREAS, it is my expectation, as Governor of the State, 
that this will be accomplished without regard to race, gender, or 
disabling condition; and 

WHEREAS, when the General Assembly set the purchasing 
policy for the State, it encouraged State agencies to provide 
contracting opportunities for small and historically underutilized 
businesses (hereinafter "HUBs") as defined in North Carolina 
General Statutes § 143-48; and 

WHEREAS, it is my desire that a coordinated effort is 
undertaken to eliminate any barriers which may have acted as 
impediments to equal opportunities for HUBs in doing business 
with the State. 

NOW, THEREFORE, by the power vested in me as Governor 
by the laws and Constitution of North Carolina, IT IS 
ORDERED: 



trade and professional organizations such as the North 
Carolina Citizens for Business and Industry and the 
Carolinas Associated General Contractors and 
encouraging HUB vendors to do the same, so that the 
business needs and concerns of HUBs are made aware to 
these larger business entities, which may advise and assist 
HUBs in doing business with the State. 

Section 3. Data Collection and Analysis 

The HUBs Office shall collect data from each agency in order 
to analyze the State and local agencies" purchasing practices 
with regard to contracting with HUBs. This data shall capture 
all contracts for goods and services from each agency, and 
indicate all HUB participation in those contracts, even as 
subcontractors to a principal contractor 

The HUBs Office shall be responsible for development of a 
uniform reporting fonnat after consultation with the Secretary of 
Administration, the State Controller and the HUBs Advisory 
Council. The State Purchasing Officer, the Director of the State 
Construction Office, the Director of the State Property Office, 
and each agency head shall provide quarterly reports in 
accordance with the uniform reporting format, and any other 
requested information, to the HUBs Office for the 
implementation of this program. A list of all agencies which 
have so reported shall be included in the quarterly report 
established below to be submitted to the Governor. 



Section 1. Creation of the Office 
Underutilized Businesses in 
Secretary of Administration 



for Historically 
the Office of the 



There is hereby established in the Office of the Secretary of 
the North Carolina Department of Administration, the Office for 
Historically Underutilized Businesses (hereinafter "HUBs 
Office"). 

Section 2. HUBs Office Responsibilities 

The HUBs Office is charged with the responsibilities of: 

a. providing technical assistance to HUB vendors. This 
assistance shall include training and counseling to HUB 
vendors as they seek opportunities to do business with the 
State through the Division of Purchase and Contract, the 
State Construction Office, the State Property Office, or 
the individual agency, department, university, community 
college or local school system (hereinafter "agency"). 

b. working with agency purchasing officers and agency 
capital projects coordinators to share information about 
opportunities to do business with HUB vendors. In order 
to accomplish this task, the HUBs Office shall prepare a 
data base and directory containing the names of HUB 
vendors known to it who are interested in doing business 
with the State or local agencies. 

c. coordinating with HUB vendors, agency purchasing 
officers and agency capital projects coordinators to 
identify and eliminate barriers or constraints that may 
restrict HUB vendors from doing business with the State 
or local agencies. 

d. developing positive relationships with North Carolina 



The North Carolina Accounting System located within the 
Office of the State Confroller may assist the HUBs Office in the 
collection and analysis of purchasing data. The HUBs Office 
shall be responsible for reporting that information to the 
Governor on a quarterly basis. The first report shall be 
presented to the Governor by August 1 5 of this \ear. Thereafter, 
each report shall be due six weeks after the end of the calendar 
quarter. 

Section 4. Creation of the HUBs Advisory Council 

a. There is created a HUBs Advisory Council to assist the 
Secretary and the HUBs Office by providing advice on 
matters that relate to the furtherance of the objectives of 
this Executive Order. 

b. The Council shall consist of the following members: 

( 1 ) the Governor's Advisor for Minority and Community 
Affairs; 

(2) the State Purchasing Officer; 

(3) the Director of the State Construction Office; 

(4) the Director of the State Propert> Office; 

(5) the Executive Director of the North Carolina Council 
for Women; 

(6) the Director of the Office of Hispanic/Latino Affairs; 

(7) the Executive Director of the Governor's Advocacy 
Council for Persons with Disabilities; 

(8) the Executive Director of the North Carolina State 
Commission of Indian Affairs; 

(9 ) the Chief Purchasing Officer of each of the respective 
Cabinet agencies. The University of North Carolina, 
the Department of Communit\ Colleges, and the 



13:23 



NORTH CAROLINA REGISTER 



June /, 1999 



1896 



mium.iuiii.hiiH'fiiinr'rlh"'""''^'-'*— ■"-""•^ 



EXECUTIVE ORDERS 



Department of Public Instruction; 

(10) three HUB owners, one of which shall be a minority, 
one of which shall be a female, and one of which shall 
be an owner with a disability'; 

(11) two representatives of non-profit organizations having 
knowledge of and expertise in HUB activity; 

(12) a chief executive officer or chief financial officer of 
a large non-HUB business entity that either: 

(a) sells goods or services to the State, or 

(b) provides construction or repair work for State 
buildings. 

c. Each agency head shall designate from his or her staff a 
HUBs Coordinator who will act as the liaison between 
the HUBs Office and the respective agency. 

d. The HUBs Advisor, Council shall meet on a semiannual 
basis or more frequently at the call of the Secretary of 
Administration. 

Section 5. State Contracts 

Each agency should strive to increase the total amount of 
goods and services acquired by it from HUB vendors, whether 
directly as principal contractors or indirectly as subcontractors 
or otherwise. It is expected that at least eight percent, by dollar 
amount, of the State's purchases of goods and services during 
fiscal year 1999-2000 and at least ten percent during fiscal year 



2000-2001 will be derived from HUB vendors. 

The HUBs Office shall assist each agency in developing a 
plan and providing technical assistance to reach the set 
objectives related to the purchase of goods and services. 

The State Purchasing Officer, the Director of the State 
Construction Office and the Director of the State Property 
Office shall continue to implement guidelines and procedures 
that ensure that the State's contracts contain specific 
requirements that compel contractors doing business with the 
State to comply with federal Equal Employment Opportunity 
requirements or their equivalent. 

Section 6. Prior Orders 

Executive Order No. 77 executed by former Governor James 
G. Martin is abolished and superseded by this Order. All prior 
Executive Orders or portions of Executive Orders inconsistent 
herewith are hereby rescinded. 

This order is effective immediately. 

Done in the Capital Cit>' of Raleigh, North Carolina, this the 
20th day of April, 1999. 



1H97 



NORTH CAROLINA REGISTER 



June I, 1999 



13:23 



IN ADDITION 



This Section contains pulnlic notices that are required to be published in the Register or have been approved by tlie Codijier 
of Rules for publication. 



North Carolina Department of Labor 

Division of Occupational Safety and Health 

4 West Edenton Street 

Raleigh, NC 27601 

(919)807-2900 



NOTICE OF PERMANENT VARIANCE FILING 

The Commissioner of Labor hereby gives notice that he is considering, in accordance with GS 95-l32(b), an application for a 
permanent variance from Broyhiil Furniture Industries. Inc. The Variance, if granted, would allow Broyhill to use Type D Ford A-62 
and Caterpillar 1T28F front-end wheel-loaders, under the conditions specified in BroyhilPs November 13, 1998 application, and in 
accordance with Factory Mutual Engineering's certification of equipment modifications and procedures. This permission is granted 
solely for the operation of uncovering the wood conveyance system for maintenance in Broyhill's Miller Hill Wood Reclaim Storage 
Building at Lenoir. North Carolina. Unless the Variance is granted, the usage of this equipment in these environments would be 
prohibited by 29 CFR 1910.178(c)(2)(vii), which has been adopted by reference by the North Carolina Division of Occupational 
Safety and Health. 

Interested persons are invited to submit comments regarding the consideration of the granting of this variance. Affected employees 
and employers may request a public hearing. 

m For additional information regarding this Variance application, to submit comments, or to request that a public hearing be held, please 
contact: 

Jack R. Forshey 

North Carolina Department of Labor 

Division of Occupational Safety and Health 

4 West Edenton Street 

Raleigh. NC 27601 

(919)807-2881 

All comments and requests must be submitted on or before July 5. 1999. 



13:23 NORTH CAROLINA REGISTER June I, 1999 1898 



IN ADDITION 



U.S. Department of Justice 
Civil Rights Division 



EJ:GS:KIF:cly Voting Section 

DJ 1 66-0 1 2-3 P. O. Box 66128 

99-0472 Washington, DC 20035-6128 



April 21. 1999 



Richard Rose. Esq. 

Poyner & Spruill 

r6. Box 353 ^ 

Rocky Mount. NC 27802. £ 

Dear Mr Rose: 

This refers to the annexation (Ordinance No. 0-98-86) and its designation to Ward 5 of the City of Rocky Mount in 
Edgecombe and Nash Counties. North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 
42 U.S.C. 1973c. We received your submission on February 23. 1999. 

The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly 
provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the changes. 
See the Procedures for the Administration of Section 5 (28 C.F.R. 5 1 .4 1 ). 



SincereK. 



Elizabeth Johnson 
Chief, Voting Section 



i 



1899 NORTH CAROLINA REGISTER June 1, 1999 13:23 



IN ADDITION 



U.S. Department of Justice 
Civil Rights Division 



EJ:VLO:NT;par Voting Section 

DJ 1 66-0 12-3 P.O. Box 66128 

99-0574 Washington. DC 20035-6128 



May 3, 1999 



Robert C. Cogswell, Jr.. Esq. 
City Attorney 
RO. Box 1513 
Fayetteville, NC 28302-1513 



Dear Mr. Cogswell: 



This refers to 15 annexations (Ordinance Nos. 421-425 (1997) and 426-435 (1998)) and the 1998 redistricting plan for the 
City of Fayetteville in Cumberland County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting 
Rights Act, 42 U.S.C. 1973c. We received your submission on March 3, 1999. 

The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly 
provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the changes. 
See the Procedures for the Administration of Section 5 (28 C.F.R. 5 1 .4 1 ) 

Sincerely, 



Elizabeth Johnson 
Chief, Voting Section 



13:23 NORTH CAROLINA REGISTER June 1, 1999 1900 

■««oiiiiuiiiuimi'.iACTuipiH»jiii.Mw— ■■~~."' '" ""■■nnmmiifminTtniiTi 



RULE-MAKING PROCEEDINGS 



A Notice of Rule-making Proceedings is a staiemeni oj subject matter oj the agency's proposed rule making. The agency 
must publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text of a 
rule. Publication of a temporary rule serves as a Notice of Rule-making Proceedings and can be found in the Register 
under the section heading of Temporaty Rules. .4 Rule-making .Agenda published by an agency solves as Rule-making 
Proceedings and can he found in the Register under the section heading of Rule-making Agendas. Statutory rejererice: 
GS 1508-21.2. 



TITLE 2 - DEPARTMENT OF AGRICULTURE 

CHAPTER 52 - VETERINARY DIVISION 

A Jotice of Rule-making Proceedings is hereby given by the 
1 V North Carolina Board of .Agriculture in accordance with 
G.S. I50B-2I.2. The agency shall subsequently publish in the 
Register the text of the rules it proposes to adopt as a result of 
this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 2 

NCAC 528 . 0302: 52 E . 0209. Other rules may be proposed in 
the course of the rule-making process. 

Authority for the rule-making: G.S. 106-389: 106-396: 106- 
416 

Statement of the Subject Matter: These rules establish 
requirements for brucellosis testing of cattle offered for public 
sale. Proposed changes would allow sale and movement of 
cattle without testing if the cattle originated fi-om a brucellosis- 
free state. 

Reason for Proposed Action: The State Veterinarian has 
determined that it is unnecessaiy to test cattle for brucellosis 
prior to sale or prior to removal frotyi a public livestock market 
if the cattle originated from a brucellosis-free state. This will 
facilitate movement of cattle and amid the expense of 
unnecessaiy testing. 

Comment Procedures: Written comments may be submitted 
to David S. McLeod, Secretary. North Carolina Board of 
Agriculture. PO Box 276-17. Raleigh, NC 27611. 



TITLE ISA - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 

~\ Jotice of Rule-making Proceedings is hereby given by the 
1 V Environmental Management Commission in accordance 
with G.S. I50B-21.2. The agency shall subsequently publish in 
the Register the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC 2B . 025 5-. 0262. Other rules may he proposed in the 



course of the rule-making process. 

Authority for the rule-making: G.S. 143-211: 143-214.1: 
143-214.^: 143-215.1: 143-21 5.3(a)(1): 143-2 15. 6A: 143- 
215.6B: 143-215. 6C: l43-2H2(d). 

Statement of the Subject Matter: To establish requirements 
in the following subject areas to achieve a 30 percent reduction 
in nitrogen loading to the Pamlico estuaiy from nonpoint 
sources in the Tar-Pamlico basin, and to hold phosphorus 
loading from nonpoint sources to 1991 levels: agriculture, 
urban stormwater, nutrient management (fertilizer application), 
protection of riparian areas, and atmospheric emissions of 
ammonia. Please see attached draft rules for all subject areas 
except atmospheric emissions of ammonia. These are based on 
concepts developed to date on these subjects by teams of 
stakeholders. We encourage comtnents not only on the draft 
text, but any comments on the general subjects as stated here. 

Reason for Proposed Action: In 1989, after several years of 
excessive fish kills in the Pamlico estuary, the NC 
Environmental Management Commission (EMC) designated the 
Tar-Pamlico River basin as a Nutrient Sensitive Waters. The 
EMC initially adopted a nutrient reduction strategy that targeted 
point sources. In 1994. the EMC expanded its focus to nonpoint 
sources, or rainfall runoff-generated pollution sources. It 
adopted a strategy for the basin that called for a 30 percent 
reduction in nitrogen inputs from nonpoint sources to the 
estuaiy. and holding of phosphorus loads at 1991 levels. The 
strategy relied on existing, largely voluntaiy, programs to 
reduce nitrogen inputs from nonpoint sources to the basin. In 
September 1998, the EMC determined that progress under the 
voluntary approach was unsatisfacloiy and that mandatoiy 
actions were needed for timely reduction ofNPS nitrogen inputs. 
The EMC approved a rule-making schedule for development of 
mandatory measures to achieve both the nitrogen and 
phosphorus goals. This is the first public notice of this proposed 
rule-making. 

Comment Procedures: The purpose of this announcement is 
to encourage those interested in this rulemaking to provide 
written comments. We encourage commerits not only on the 
draft rules that are attached, but also on the entire subject area 
as stated here. Written comments may be submitted to Rich 
Gannon, DENR, Division of Water Quality, Planning Branch, 
PO. Box 29535, Raleigh, NC 2'7'626-0535. Questions may be 
directed to Rich Gannon at (919) ^33-5083 ext. 356, or 
rich _gannon a.h2o. enr state, nc. us. 



1 90 1 



NORTH CAROLINA REGISTER 



June I, 1999 



13:23 



RULE-MAKING PROCEEDINGS 



AGRICULTURE 



MAJOR ISSUES 
DISCUSSED 



DECISIONS 
REACHED 



A team met to develop a Rule that will achieve the basin nitrogen and phosphorus goals from agriculture. The team held a total of 
1^ seven meetings. 

PARTICIPANTS Team meetings had high attendance, with an average of 26 people at each meeting. The 

following groups were represented: seven industry associations, five commercial 
interests, numerous individual fanners, many local agriculture offices, four state/federal 
agencies, two environmental interests, and universitv,' professors. 

• Comparison of the merits of a Neuse "local option" approach relative to an "all farms" 
alternative 

• Agriculture's contribution to NPS nitrogen and phosphorus loading in the basin. 

• Agriculture's nutrient load reduction progress to date through voluntary efforts. 

• The accounting tool that the agencies plan to use, the Nutrient Loss Estimation 
Worksheet. 

• Who should be covered by the Rule. 

• How to address the potential for increases in phosphorus loading from 1991 levels due 
to animal waste application. 

• Agricultural nutrient management requirements, as described in the nutrient 
management section of this report. 

• Use a zero acre threshold as in the Neuse agriculture Rule, and clearly include 
horticulture. 

• Use the Neuse agriculture Rule as a template, including both the local strategy and 
standard BMP options. 

• On potential loading from soluble phosphorus: 

- The science on soluble phosphorus currently contains gaps that present 
management challenges. 

- Federal agricultural policy related to this issue is currently evolving; USDA-NRCS 
may release new phosphorus management policy in the near future. 

- Any Rules to limit waste application based on phosphorus measures could involve 
significant new costs to agriculture. 

• Require the Basin Oversight Committee to appoint a technical advisory committee to 
monitor advances in scientific understanding related to phosphorus loading issues. 
The TAC will report its findings to the Basin Oversight Committee and the EMC on an 
annual basis. 

• The team agreed to encourage local agriculture agencies in the basin to begin 
advocating site-specific phosphorus analysis and BMP implementation on a voluntary 
basis until phosphorus management requirements are established. 

• The team identified difficulties related to estimating the nitrogen load from agriculture 
in 1991 (the baseline load), fi^om which reductions are to be measured. The team also 
identified issues associated with current methods of load reduction accounting, and 
with accounting alternatives. It was unable to resolve these challenging technical 
issues, which may have significant bearing on implementation of the agricultural Rules 
in both the Neuse and Tar-Pamlico basins, in the available time. The team agreed to 
request that the EMC form an Agriculture Nutrient Accounting Task Force as detailed 
below. 

ISSUES ON WHICH None. 
CONSENSUS WAS 
NOT REACHED 

STEERING In addition to offering clarifications to Rule language, the Steering Committee expressed 

COMMITTEE the following concerns over the agriculture team's draft. 

COMMENTS • An implementation deadline of 4 years in unrealistic. 

One year is inadequate time for Local Advisory Committees to assemble all of the 

information required for local strategies. 

Language tying BMP requirements to USDA-NRCS standards should be removed; 

NRCS standards are federal policy that changes frequently, which would create 

implementation problems. 



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I A subgroup of the agricultural team offered responses as detailed below. 

AGRICULTURE NUTRIENT ACCOUNT TASK FORCE 

The agriculture stakeholder team recommends that the EMC convene a task force, to be referred to as the "Agriculture Nutrient 
Accounting Task Force", to develop recommendations on certain aspects of the proposed Rules affecting agriculture in the Tar- 
Pamlico basin. The task force should evaluate alternative methods for developing nitrogen and phosphorus baseline loading and 
alternative methods of nitrogen and phosphorus reduction accounting. More specifically, the task force should evaluate at least the 
following issues: the potential for using a more recent year than 1991 as baseline year; and agricultural Rule implementation based 
on the concept of "tolerable nitrogen loss". The task force should consist of agricultural stakeholders from the Tar-Pamlico basin 
and persons with agricultural technical backgrounds. It should report findings back to the EMC within one year from the date of its 
establishment. 

RESPONSES TO THE STEERING COMMITTEE'S CONCERNS 

The agriculture team chose not to meet in the brief remaining time to address the issues raised by the Steering Committee. DWQ staff 
held additional discussions with the Division of Soil and Water Conservation and the NC Farm Bureau Federation, and made the 
following determinations: 

• Raise the goal attainment date to 5 years, as in the Neuse (the 4-year deadline was concurrent with the end of Phase 11 of the NSW 
strategy, and was based in the idea that significant BMP implementation had already occurred under the voluntary plan, which 
would allow more rapid achievement of reduction goals than in the Neuse basin). 

• Remove references to NRCS standards; tie BMP requirements to SWCC standards only, which change less frequently following 
greater scrutiny than NRCS standards. 

The follow ing Rules reflect agreements reached by the agriculture team. 



.0255 TAR-PAMLICO RIVER BASIN-NUTRIENT 
SENSITIVE WATERS MANAGEMENT 
STRATEGY: AGRICULTURAL 
NUTRIENT LOADING GOALS 

All persons engaging in agricultural operations in the Tar- 
Pamlico River Basin, including those related to crops, 
horticulture, livestock, and poultry, shall collectively achieve and 
maintain the following nutrient loading levels: 

( 1 ) a 30 percent total nitrogen net loading reduction from 
1991 loading from agriculture to the basin; and 

(2) no net increase in total phosphorus loading over 1 99 1 
levels. 

In addition to requirements set forth in general permits for 
animal operations issued pursuant to G.S. 143-215. IOC, these 
Rules apply to all livestock and poultry operations, regardless of 
size, in the Tar-Pamlico River Basin. A management strategy to 
achieve this reduction is specified in Rule .02 of this Rule. 

.0256 TAR-PAMLICO RIVER BASIN-NUTRIENT 
SENSITIVE WATERS MANAGEMENT 
STRATEGY: AGRICULTURAL NUTRIENT 
CONTROL STRATEGY 

(a) PURPOSE. The purpose of this Rule is to set forth a 
process by which agricultural operations in the Tar-Pamlico 
River Basin will collectively achieve and maintain a 30 percent 
reduction in nitrogen loading to the Pamlico estuary from 
agricultural activities. This reduction is to be achieved within 
five years of the effective date of this Rule, and is to be 
measured from 1991 loading levels. The purpose of this Rule is 
also for agricultural operations to hold phosphorus loading from 
agricultural activities to 1991 levels within five years. The 
Commission acknowledges that the requirements of this Rule do 
not fully address nitrogen loading from animal operations, 
including atmospheric emissions and deposition of ammonia 



compounds. As information becomes available on nitrogen 
loading from animal operations and BMPs to control this 
loading, the Commission may require such BMPs it deems 
necessary to support the purpose of this Rule. 

(b) APPLICABILITY. This Rule shall apply to all persons 
engaging in agricultural operations in the Tar-Pamlico River 
Basin. Agricultural operations are activities that relate to the 
production of crops, horticultural products, livestock, and 
poultry. 

(c) OPTIONS FOR MEETING RULE REQUIREMENTS. 
Persons subject to this Rule are provided with two options for 
meeting the requirements of this Rule. Such persons shall be 
responsible for implementing and maintaining the BMPs 
selected per Item (5) or (6) for as long as they continue their 
agricultural operation. 

(1) Option I is to sign up for and participate in 
implementing a collective local strategy for 
agricultural nutrient control pursuant to Item (5) of 
this Rule. This option allows site-specific plans to be 
developed for those operations where further nitrogen 
and phosphorus reduction practices are necessary to 
achieve the collective loads. 

(2) Option 2 is to implement standard BMPs pursuant to 
Item (6) of this Rule. Requirements for the BMPs are 
listed in Items (7) through (II) of this Rule. 

(d) METHOD FOR RULE IMPLEMENTATION. This Rule 
shall be implemented through a cooperative effort between the 
Basin Oversight Committee and Local Advisory Committees in 
each county or watershed. The membership, roles and 
responsibilities of these committees are set forth in Items (12) 
and (13) of this Rule. 

(e) OPTION I: PARTICIPATE IN A COLLECTIVE 
LOCAL STRATEGY FOR AGR1CULTUR.AL NUTRIENT 
CONTROL. Persons who choose to participate in the collective 



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local strateg} for agricultural nutrient control shall meet the 
following requirements. 

(1) Within one year of the effective date of the Rule, 
persons shall sign up with the Local Advisorv 
Committee for their countv' or w atershed to participate 
in the collective local strategy. Persons who do not 
complete the sign-up process shall be subject to 
Option 2 set forth in Item (6) of this Rule. 

(2) Persons who choose this option shall sign a plan 
developed for their operation that is satisfactory to 
their Local Advisory Committee per the requirements 
set forth in Sub-Item ( I3)(c). 

(3) A person mav withdraw from the local nutrient 
control strateg> up until the time that the person signs 

■ a plan for his operation as described in Sub-Item (b) 
above. Persons who do not sign the plan shall be 
subject to Option 2 pursuant to Item (6) of this Rule. 

(4) Persons who sign the plan for their operation shall be 
required to implement the plan within t1ve years after 
the effective date of this Rule and to permanently 
maintain the BMPs specified in the plan for as long as 
the agricultural operation continues. 

(5) Persons who implement a nutrient management plan 
as part of Option I shall have satisfied the 
requirements of the Tar-Pamlico Nutrient 
Management Rule, I5A NCAC 2B .0257. 

(f) OPTION 2: IMPLEMENT STANDARD BEST 
MANAGEMENT PRACTICES (BMPs). Option 2 shall apply 
to the foUovsing persons: persons who choose to follow this 
option, persons who do not complete the sign-up process for 
Option 1 within on.- >ear of the effective date of this Rule, and 
persons who sign up for Option 1 but withdraw prior to signing 
the specific plan for their operation. The requirements 
associated with Option 2 are as follows. 

(I) Persons subject to Option 2 shall implement one of 
the following BMP combinations on all lands within 
their operation within four years of the effective date 
of this Rule: 

(A) A 30-foot forested riparian area meeting the 
requirements of Items (7) and (8) and a 20- foot 
vegetated riparian area meeting the 
requirements of Items (7) and (9): or 

(B) A 30-foot vegetated riparian area meeting the 
requirements of Items (7) and (9) and either 
water control structures meeting the 
requirements of Item (10) or a nutrient 
management plan meeting the requirements of 
Item (I I ); or 

(C) A 20-foot forested riparian area meeting the 
requirements of Items (7) and (8) and either 
water control structures meeting the 
requirements of Item (10) or a nutrient 
management plan meeting the requirements of 
Item ( 1 1 ): or 

(D) Water control structures meeting the 
requirements of Item (10) and a nutrient 
management plan meeting the requirements of 
Item (11). 



(g) REQUIREMENTS FOR FORESTED AND 

VEGETATED RIPARIAN AREAS. Forested and vegetated 
riparian areas implemented under either Option 1 or Option 2 
shall meet the following requirements. 

( 1 ) Sheet flow must be maintained to the maximum extent 
practical through dispersal of concentrated tlow and 
re-establishment of vegetation to maintain the 
effectiveness of the riparian area. 

(2) Concentrated runoff from new ditches or manmade 
conveyances must be dispersed into sheet flow before 
the runoff enters anv riparian area. 

(3) Periodic corrective action to restore sheet flow should 
be taken b\ the landowner if necessan. to impede the 
formation of erosion gullies that allow concentrated 
flow to bypass treatment in the riparian area. 

(4) A vegetated riparian area may be substituted for an 
equivalent width of forested riparian area within 100 
feet of tile drainage. 

(5) Where the riparian area requirements would result in 
an unavoidable loss of tobacco allotments [(7 CFR 
723.220(c)] and the BMPs of controlled drainage or 
nutrient management are not in place, forest cover is 
required only in the first 20 feet of the riparian area. 

(6) The following practices and activities are not allowed 
in either the forested riparian area or the vegetated 
riparian area: 

( A ) Any activities that would result in water quality 
standard violations or disrupt the structural or 
functional integrity of the riparian areas. 

(B) Land disturbing activity and placement of fill 
and other materials, other than that necessary 
under Item (8) of this Rule. 

(C) Any activity that threatens the health and 
function of the vegetation including, but not 
limited to. application of fertilizer or chemicals 
in amounts exceeding the manufacturer's 
recommended rate, uncontrolled sediment 
sources on adjacent lands, and the creation of 
any areas with bare soil. 

(7) The following waterbodies and land uses are exempt 
from the riparian area requirements of this Rule: 

(A) Ditches and manmade conveyances, other than 
modified natural streams, which under normal 
conditions do not receive drainage waters from 
anv tributao. ditches, canals, or streams, unless 
the ditch or manmade conveyance delivers 
runoff directly to waters classified in 
accordance with I5A NCAC 2B .0100. 

(B) Areas mapped as perennial streams, 
intermittent streams, lakes, ponds or estuaries 
on the most recent versions of United States 
Geological Survev 1 :24.000 scale (7.5 minute 
quadrangle) topographic maps where no 
perennial or intermittent streams, lakes, ponds, 
or estuaries exist on the ground. 

(C) Ponds and lakes created for animal watering, 
irrigation, or other agricultural uses that are not 



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RULE-MAKING PROCEEDINGS 



part of a natural drainage way that is classified 
in accordance with 1 3 A NC AC 2B .0 1 00. 

(D) Water dependent structures as defined in 15A 
NCAC 2B .0202. provided that they are 
located, designed, constructed and maintained 
to provide maximum nutrient removal, to have 
the least adverse effects on aquatic life and 
habitat and to protect water quality. 

(E) Stream restoration projects, scientific studies. 
stream gauging, water wells, passive recreation 
facilities such as boardwalks, trails, pathways, 
historic preservation and archaeological 
activities, provided that they are located, 
designed, constructed and maintained to 
provide the maximum nutrient removal and 
erosion protection, to have the least adverse 
effects on aquatic life and habitat, and to 
protect water quality to maximum extent 
practical through the use of BMPs. 

(F) Stream crossings associated with timber 
harvesting, if performed in accordance with the 
Forest Practices Guidelines Related to Water 
Quality (15A NCAC lJ.0201-.0209). 

(h) SPECIFICATIONS FOR FORESTED RIPARIAN 
AREAS. Forested riparian areas implemented under either 
Option 1 or Option 2 shall meet the following specifications. 

(1) Forested riparian areas shall be established on all 
sides of surface waters indicated as intermittent 
streams, perennial streams, lakes, ponds and estuaries 
on the most recent versions of U.S.G.S. 1 :24,000 
scale (7.5 minute quadrangle) topographic maps or 
other site-specific evidence. The surface waters shall 
be within the operation or adjacent to it within the 
distances specified in Sub-Item (6)(a) above. 

(2) The forested riparian area shall begin at top of bank 
for intermittent streams and perennial streams without 
tributaries and shall extend landward the applicable 
distance specified in Sub-Item (6)(a) above on all 
sides of the waterbody, measured horizontalK on a 
line perpendicular to the waterbody. For all other 
waterbodies, the forested riparian area shall begin at 
top of bank or mean high water line and shall extend 
landward the applicable distance specified in Sub- 
Item (6)(a) above, measured horizontally on a line 
perpendicular to the waterbody. 

(3) Forested riparian areas shall be established as 
undisturbed forest. Any forest vegetation that exists 
on the effective date of this Rule in forested riparian 
areas that are established per this Rule must be 
preserved and maintained in accordance with Sub- 
Items {8)(e)(i)-(vi) below. 

(4) The application of fertilizer in forested riparian areas 
established under this Rule is prohibited. 

(5) The following practices and activities are allowed in 
forested riparian areas established under this Rule. 
(A) Natural regeneration of forest vegetation and 

planting vegetation to enhance the riparian area 
if disturbance is minimized, provided that any 



plantings should primariK consist of locally 
native trees and shrubs. 

(B) Selective cutting of trees provided that the 
basal area (measured as 12-inch diameter 
breast height) remains at or above 60 square 
feet per acre of riparian area. Limited 
mechanized equipment is allowed in this area. 

(C) Horticulture practices to maintain the health of 
individual trees. 

(D) Removal of individual trees that are in danger 
of causing damage to dwellings, other 
structures, or the stream channel. 

(E) Removal of dead trees and other timber cutting 
techniques necessary to prevent extensive pest 
or disease infestation if recommended by the 
Director, Division of Forest Resources and 
approved by the Director, Division of Water 
Quality. 

(F) Timber removal and skidding of trees, as 
allowed under Sub-Items (8)(e)(i) - (8)(e)(v) 
shall be directed away from the water course or 
water body. Skidding shall be done in a 
manner to prevent creation of ephemeral 
channels perpendicular to the water body. Tree 
removal shall be performed in a manner that 
does not compromise the intended purpose of 
the riparian area and in accordance with the 
Forest Practices Guidelines Related to Water 
Quality (15A NCAC IJ .020I-.0209). 

(i) SPECIFICATIONS FOR VEGETATED RIPARIAN 
AREAS. Vegetated riparian areas implemented under either 
Option 1 or Option 2 shall meet the following specifications. 

(1) The vegetated riparian area identified in Sub-Item 
(6)(a)(i) shall begin at the outer edge of the forested 
riparian area and shall extend landward a minimum of 
20 feet as measured horizontally on a line 
perpendicular to the waterbody. The vegetated 
riparian area identified in Sub-Item (6)(a)(ii) shall 
begin at the top of bank for intermittent streams and 
perennial streams without tributaries and shall extend 
landward a minimum of 30 feet on each side of the 
waterbody, measured horizontalK on a line 
perpendicular to the waterbody. For all other 
waterbodies, the vegetated riparian area identified in 
Sub-Item (6)(a)(ii) shall begin at the top of bank or 
the mean high water line and shall extend landward 30 
feet, measured horizontally on a line perpendicular to 
the waterbody. 

(2) Vegetation in the vegetated riparian area shall consist 
of a dense ground cover composed of herbaceous or 
woody species, which provides for diffusion and 
infiltration of runoff and filtering of pollutants. 

(3) The following practices and activities are allowed in 
the vegetated riparian area in addition to those 
allowed in the forested riparian area. 

(A) Mowing and removal of plant products such as 
timber, nuts, and fruit on a periodic basis, 
provided the intended purpose of the riparian 



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area is not compromised by harvesting, 
disturbance, or loss of ground cover. 
(B) Management of forest vegetation to minimize 
shading on adjacent land, if the water quahty 
functions of the riparian area are not 
compromised, 
(j) REQUIREMENTS FOR WATER CONTROL 

STRUCTURES. Water control structures implemented under 
either Option 1 or Option 2 shall meet the following 
requirements. 

( 1 ) Water control structures shall be operated pursuant to 
a water control structure management plan developed 
according to the standards and specifications adopted 
by the NC Soil and Water Conservation Commission. 

- A technical specialist designated pursuant to Rules 
adopted by the Soil and Water Conservation 
Commission must provide written approval that the 
water management plan meets such standards and 
specifications. If the water management plan is not 
implemented, then a riparian area is required pursuant 
to this Section. 

(2) The water control structures must provide equivalent 
protection and directly affect the land and waterbodies 
draining into the waterbody subject to the riparian 
area requirements. 

(3) To the maximum extent practical, water control 
structures should be managed to maximize nitrogen 
removal throughout the year. 

(k) REQUIREMENTS FOR NUTRIENT MANAGEMENT 
PLANS. Nutrient management plans implemented under either 
Option I or Option 2 shall meet the following requirements. 

(1) Nutrient management plans shall be implemented on 
agricultural land adjacent to riparian areas according 
to the standards and specifications adopted by the NC 
Soil and Water Conservation Commission. A 
technical specialist designated pursuant to Rules 
adopted by the Soil and Water Conservation 
Commission must provide written approval that the 
water management plan meets such standards and 
specifications. 

(2) If the nutrient management plan is not implemented, 
then a riparian area is required pursuant to this 
Section. 

(3) Nutrient management plans must provide equivalent 
protection and directly affect the land and waterbodies 
draining into the waterbody subject to the riparian 
area requirement. 

(4) To the maximum extent practical, nutrient 
management plans should be managed to maximize 
nitrogen removal throughout the year. 

(1) BASIN OVERSIGHT COMMITTEE. The Basin 
Oversight Committee shall have the following membership, role 
and responsibilities. 

( I ) MEMBERSHIP The Commission shall delegate to 
the Secretary the responsibility of forming a Basin 
Oversight Committee within 2 months of the effective 
date of this Rule. Members shall be appointed for 
five-year terms and shall serve at the pleasure of the 



Secretary. Until such time as the Commission 
determines that long-term maintenance of the nutrient 
loads is assured, the Secretary shall either reappoint 
members or replace members every five years. The 
Secretary shall solicit one nomination for membership 
on this Committee to represent each of the following: 

(A) Division of Soil and Water Conservation, 

(B) United States Department of Agriculture- 
Natural Resources Conservation Service (shall 
serve in an "ex-officio" non-voting capacity 
and shall function as a technical program 
advisor to the Committee), 

(C ) North Carolina Department of Agriculture and 
Consumer Services, 

(D) North Carolina Cooperative Extension Service, 

(E) Division of Water Quality, 

(F) Environmental interests, 
(0) Agricultural interests, and 

(H) The scientific community with experience 
related to water quality problems in the Tar- 
Pamlico River Basin, 
(b) ROLE. Tlie Basin Oversight Committee shall: 

(A) Develop a tracking and accounting 
methodology pursuant to Sub-Item ( 12)(c), and 
submit the final version to the Commission 
within one year of the effective date of this 
Rule. 

(B) Demonstrate within 18 months of the effective 
date of this Rule how the nitrogen and 
phosphorus loads can be met by each county or 
watershed and collectively by implementing 
BMPs. 

(C) Identiiy and implement future refinements to 
the accountability methodology as needed to 
reflect advances in scientific understanding. 

(D) Appoint a technical advisory committee within 
6 months of the effective date of this Rule to 
monitor advances in scientific understanding 
related to phosphorus loading, to evaluate the 
need for additional management action to meet 
the phosphorus load, and to report its findings 
to the Basin Oversight Committee on an annual 
basis. The Basin Oversight Committee shall in 
turn report these findings and its 
recommendations to the Commission on an 
annual basis following the effective date of this 
Rule, until such time as the Commission 
determines that the technical advisory 
committee has fulfilled its purpose. The Basin 
Oversight Committee shall solicit nominations 
for this committee from the Division of Soil 
and Water Conservation, United States 
Department of Agriculture-Natural Resources 
Conservation Service, North Carolina 
Department of Agriculture and Consumer 
Services, North Carolina Cooperative 
Extension Service, Division of Water Quality, 
environmental interests, agricultural interests. 



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and the scientific community with experience 
related to the committee's charge. 

(E) Review, approve and summarize count>' or 
watershed local strategies and present these 
strategies to the Commission for approval 
within 2 years alter the effective date of this 
Rule. 

(F) Review, approve and summarize local nitrogen 
and phosphorus loading annual reports and 
present these reports to the Commission each 
October, until such time as the Commission 
determines that annual reports are no longer 
needed to assure long-term maintenance of the 
nutrient loads. 

(3) ACCOUNTABILITY PROCESS. The Basin 
Oversight Committee shall develop an accountability 
process that meets the following requirements: 

(A) The process shall quantity baseline total 
nitrogen and phosphorus loadings from 
agricultural operations in each count\ and for 
the entire basin. 

(B) The process shall allocate the calculated 
nitrogen and phosphorus loads for agricultural 
operations to counties or watersheds within the 
Tar-Pamlico basin. 

(C) The process shall include a means of tracking 
implementation of BMPs, including location, 
type, area affected. 

(D) The process shall include a means of 
estimating incremental nitrogen and 
phosphorus reductions from actual BMP 
implementation and of evaluating progress 
toward the nutrient loads from BMP 
implementation. 

(E) The process shall allow for future refinements 
to the nutrient baseline loading determinations, 
and to the load reduction accounting 
methodology. 

(F) The process shall provide for quantification of 
changes in nutrient loading due to changes in 
land use, modifications in agricultural activity, 
or quantification of atmospheric nitrogen 
loading. 

(G) The process shall include a method to track 
maintenance of the nutrient net loads after the 
initial five years of this Rule, including 
tracking of changes in BMPs and additional 
BMPs to offset new or increased sources of 
nutrients from agricultural operations. 

(H) A draft accountability process shall be 
submitted to the Commission within six 
months after the effective date of the Rule. 
The final accountability process shall be 
submitted to the Commission for approval 
within one year after the effective date of the 
Rule. If the Commission does not approve the 
final accountability process, the Basin 
Oversight Committee will have an additional 



three months to revise and resubmit the process 
to the Commission. If the Commission does 
not approve an accountability process within 
15 months of the effective date of this Rule, 
then the Commission may require all 
agricultural operations to follow Option 2 set 
forth in Item (5) of this Rule, 
(m) LOCAL ADVISORY COMMITTEES. The Local 

Advisory Committees shall have the following membership, 

roles, and responsibilities. 

( 1 ) MEMBERSHIP The Commission shall delegate to 
the Directors of the Division of Water Quality and the 
Division of Soil and Water Conservation the 
responsibility of forming Local Advisory Committees 
within two months of the effective date of this Rule. 
The Directors shall form Local Advisory Committees 
in each county (or watershed as specified by the Basin 
Oversight Committee) within the Tar-Pamlico River 
Basin. Members shall serve for terms of five years at 
the pleasure of the Environmental Management and 
Soil and Water Conservation Commissions. Until 
such time as the Commission determines that long- 
term maintenance of the nutrient loads is assured, the 
Directors shall reappoint or replace members every 
five years. The Directors shall solicit nominations for 
membership on the Local Advisory Committee that 
represent each of the following interests; 

(A) Local Soil and Water Conservation District 
(one), 

(B) Local United States Department of 
Agriculture- Natural Resources Conservation 
Service (one), 

(C) Local North Carolina Department of 
Agriculture and Consumer Services (one), 

(E) Local North Carolina Cooperative Extension 
Service (one), 

(F) Local North Carolina Division of Soil and 
Water Conservation (one), 

(G) Local farmers in the county or watershed (at 
least two). 

(2) ROLE. The Local Advisory Committees shall: 

(A) Conduct a sign-up process for persons wishing 
to voluntarily implement the local strategy 
pursuant to Item (5) of this Rule. This sign-up 
process shall be completed within one year 
after the effective date of this Rule. 

(B) Designate a member agency to compile and 
retain copies of all individual plans produced 
under Item (5) of this Rule. 

(C) Develop local nutrient control strategies for 
agricultural operations, pursuant to Sub-Item 
(I3)(c) of this Rule, to meet the nitrogen and 
phosphorus loads assigned by the Basin 
Oversight Committee. Those strategies shall 
be submitted to the Basin Oversight Committee 
no later than twenty-three months from the 
effective date of this Rule. 



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RULE-MAKING PROCEEDINGS 



(D) Ensure that any changes to the design of the 
local strategy will continue to meet the nutrient 
loads of this Rule. 

(E) Submit annual reports to the Basin Oversight 
Committee, pursuant to Sub-Item (13)(d) of 
this Rule, each May until such time as the 
Commission determines that annual reports are 
no longer needed to assure long-term 
maintenance of the nutrient loads. 

(3) LOCAL NUTRIENT CONTROL STRATEGIES. 
The Local Advisory Committees shall be responsible 
for developing county or watershed nutrient control 
strategies that meet the following requirements. 

(A) Local nutrient control strategies shall be 
designed to achieve the required nitrogen and 
phosphorus loads within five years after the 
effective date of this Rule, and to maintain 
those reductions in perpetuity or until such 
time as this Rule is revised to modify' this 
requirement. 

(B) Local nutrient control strategies shall specify 
the names and locations of all agricultural 
operations within their areas, numbers and 
acres of BMPs that will be implemented by 
enrolled operations, estimated nitrogen and 
phosphorus reductions, schedule for BMP 
implementation, and operation and 
maintenance requirements. 

(C) Local nitrogen control strategies are not 
required to be more stringent than the standard 
BMP option provided that the nutrient loads is 
achieved collectively; however, the Local 
Advisory Committees may develop strategies 
that achieve greater reductions than the nutrient 
loads. 



(D) If the Local Advisory Committee fails to 

develop the local nutrient control strategy, the 

Commission may develop the strategy based on 

the tracking and accounting method approved 

by the Commission. 

(4) ANNUAL REPORTS. The Local Advisory 

Committees shall be responsible for submitting annual 

reports for their counties or watersheds. Annual 

reports shall be submitted to the Basin Oversight 

Committee each May until such time as the 

Commission determines that annual reports are no 

longer needed to assure long-term maintenance of the 

nutrient loads. Annual reports should include the 

following information on local agricultural operations, 

summarized separately for cropland, livestock and 

poultry activities: 

(A) Documentation of BMPs implemented 
(including type, location, and area affected) 
under the local strateg> and their costs. 

(B) Documentation of BMPs discontinued under 
the local strategy. 

(C) Changes in land use or agricultural activity and 
any associated increases or decreases in 
nitrogen and phosphorus loading resulting fi-om 
these changes. 

(D) Documentation of success in operation and 
maintenance of BMPs under the local strategy. 

(E) Net nitrogen and phosphorus loading changes 
from agricultural operations under the local 
strategy, and progress towards or maintenance 
of the nittogen and phosphorus loads. 

(F) Requests for modifications to accounting 
practices or nutrient loads. 



NUTRIENT MANAGEMENT 

Two separate teams developed the nutrient management Rule. The agriculture team addressed nutrient management on agricultural 
lands as part of their discussions. A separate nutrient management team addressed fertilizer application on non-agricultural lands. 
The agriculture team held a total of seven meetings and the non-agriculture team a total of three. 



PARTICIPANTS 



MAJOR ISSUES 
DISCUSSED 



• The agriculture team meetings had strong attendance, with an average of 26 people 
attending each meeting. The attendees represented seven industry associations, five 
commercial interests, numerous individual farmers, many local agriculture offices, four 
state/federal agencies, two environmental interests, and academia. 

• The meetings of the nutrient management team for non-agricultural lands had low 
attendance. The participants represented two industry groups and two state agencies. 

• The agriculture team discussed these issues related to nutrient management: 

- Types of agricultural activities and parties to include. 

- The need to add a phosphorus component to nutrient management training. 

• The nutrient management team for non-agricultural lands discussed these issues: 

- The source types that the nutrient management Rule should target, such as golf 
courses, local government holdings, easements, homes, and businesses. 

- The adequacy of Neuse Nutrient Management Rule as a template. 

- Who should be covered b> the Rule based on acreage of nutrient application. 

- Management options and training components. 



13:23 



NORTH CAROLINA REGISTER 



June I, 1999 



1908 



D^HBKHai&kS 



nffiffliiTBFitr^- ^-">^ "^^ 



RULE-MAKING PROCEEDINGS 



DECISIONS 
REACHED 



ISSUES ON WHICH 

CONSENSUS WAS 
NOT REACHED 



STEERING 

COMMITTEE 

COMMENTS 



• The agriculture team agreed to use the Neuse Nutrient Management Rule requirements 
with two additions: 

- Add crop consultants as a regulated group. 

- Add a phosphorus component to nutrient management training. 

• The nutrient management team for non-agricultural lands agreed to use the Neuse 
Nutrient Management with the following two modifications: 

- Eliminate the 50-acre threshold used in the Neuse Nutrient Management Rule for 
non-agricultural lands 

- Exempt residential homeowners who apply nutrients to their own lawns. 

The agriculture team did not reach consensus on who would be covered by the Rule 
based on acreage of nutrient application. There was strong interest in reducing the 
threshold to zero acres, but there v\as also concern over unnecessary administrative costs 
to track, train, or write plans for numerous small operations. The team agreed to send 
two alternatives to the EMC: one would propose a zero acre threshold and limit 
requirements to commercial agriculture, while the second would keep the 50-acre 
threshold utilized in the Neuse Nutrient Management Rule. 

The Steering Committee was concerned with holding agricultural plans to USDA-NRCS 
standards, which change frequently. Other comments called for various clarifications in 
Rule language. DWQ staff agreed to address these points, and neither team met again. 



Two alternative nutrient management Rules are provided below to reflect the teams" agreements. 

ALTERNATIVE 1 



.0257 TAR-PAMLICO RIVER BASIN NUTRIENT 
SENSITIVE WATERS MANAGEMENT 
STRATEGY: NUTRIENT MANAGEMENT 

(a) PURPOSE. The two primary purposes of this Rule are: 
to reduce the nitrogen loading and to maintain the phosphorus 
loading to the Pamlico estuary resulting from fertilizer 
application. Achievement of these objectives will be measured 
based on 1991 loading levels and are to be achieved within five 
years from the effective date of this Rule. 

(b) APPLICABILITY. This Rule shall apply as follows. 

(1) This Rule shall apply to the following persons who 
apply nutrients to their lands: 

(A) Persons who own or manage cropland areas 
that together comprise at least 50 acres that 
have not developed a nutrient management plan 
for their property pursuant to 1 5A NCAC 2B 
.0256. 

(B) Persons who own or manage floriculture areas, 
ornamental areas and greenhouse production 
areas that together comprise at least 50 acres. 

(C) Persons who own or manage golf courses, 
recreational lands, rights-of-way, or other 
turfgrass areas. 

(D) Persons who own or manage lawn and garden 
areas in residential, commercial, or industrial 
developments except for residential 
landowners who apply fertilizer to their own 
property. 

(2) This Rule shall apply to applicators hired by the 
persons listed in Sub-Item (2)(a). Sub-Item (3)(b) sets 
forth the potential requirements for applicators. 



(3) This Rule shall apply to applicators, hired by 
residential landowners, who apply fertilizer to 
residential areas in the Tar-Pamlico basin. 

(4) This Rule shall apply to consultants hired by the 
persons listed in Sub-Item (2)(a) or b) applicators. 
Sub-Item (3)(c) sets forth the requirements for 
consultants. 

(c) REQUIREMENTS. Subject persons shall meet the 
following requirements: 

( 1 ) Persons responsible for applying nutrients to their 
own land or land that they manage shall either: 

(A) Attend and successfully complete nutrient 
management training pursuant to Item (4), or 

(B) Complete a nutrient management plan for all 
lands to which they apply or manage the 
application of nutrients, pursuant to Item (5). 

(2) Persons who hire an applicator to appl\' nutrients to 
the land that they own or manage shall either: 

(A) Ensure that the applicator they hire has 
attended and successfully completed nutrient 
management training pursuant to Item (4), or 

(B) Ensure that the applicator the\ hire has 
completed a nutrient management plan for the 
land that they own or manage pursuant to Item 
(5). or 

(C) Complete a nutrient management plan for the 
land that they own or manage pursuant to Item 
(5) and ensure that the applicator they hire 
follows this plan. 

(3) Applicators, hired b\ residential landowners, who 
apply fertilizer to residential areas in the Tar-Pamlico 



1909 



NORTH CAROLINA REGISTER 



June 1, 1999 



13:23 



RULE-MAKING PROCEEDINGS 



basin shall attend and successfully complete nutrient 
management training pursuant to Item (4). 
(4) Consultants who prepare nutrient management plans 
for persons who own or manage land or who apply 
nutrients to land in the Tar-Pamlico basin shall attend 
and successful!) complete nutrient management 
training pursuant to Item (4). 

(d) NUTRIENT MANAGEMENT TRAINING. Persons 
who choose to meet this Rules requirements b\ completing 
nutrient management training shall meet the following 
requirements. 

(1) Within one year from the effective date of this Rule, 
the person shall sign up with the Cooperative 
Extension Service or the Division to take the nutrient 
management training. 

(2) Within five years from the effective date of this Rule, 
the person shall obtain a certificate from the 
Cooperative Extension Service or the Division 
verifying completion of training that addresses, at 
minimum, proper management of nitrogen and 
phosphorus. 

(3) Persons who fail to sign up or to obtain the nutrient 
management certificate within the required 
timeframes shall be required to develop and properly 
implement nutrient management plans pursuant to 
Item (5). 

(4) Training certificates must be kept on-site or be 
produced within 24 hours of a request by the 
Division. 

(e) NUTRIENT MANAGEMENT PLANS. Persons who 
choose to meet this Rule's requirements by completing a nutrient 
management plan shall meet the following requirements. 

(1 ) Within five years of the effective date of this Rule, a 
nutrient management plan that meets the following 
standards shall be developed: 

(A) Nutrient management plans for cropland shall 
meet the standards and specifications adopted 
by the NC Soil and Water Conservation 
Commission. 

(B) Nutrient management plans for application of 
dry poultry litter fi^om animal waste 
management systems involving 30,000 or more 
birds, as required under NC Statute §143- 
2l5.IOC(f). shall stipulate application of litter 
at agronomic rates for nitrogen. Agronomic 
rates shall be based on realistic yield 
expectations derived from waste nutrient 
content, crop and soil type, or yield records. 

(C) Nutrient management plans for turfgrass shall 
follow the North Carolina Cooperative 
Extension Service guidelines in "Water Quality 
and Professional Lawn Care" (NCCES 
publication number WOMM-155). "Water 
Quality and Home Lawn Care" (NCCES 
publication number WQMM-151), or 
guidelines distributed by land-grant 
universities. Copies may be obtained from the 
Division of Water Quality. 512 North Salisburs' 



Street. Raleigh. North Carolina 27626 at no 
cost. 
(D) Nutrient management plans for nursery crops 
and greenhouse production shall follow the 
Southern Nurserymen's Association guidelines 
promulgated in "Best Management Practices 
Guide For Producing Container-Grown Plants" 
or guidelines distributed by land-grant 
universities. Copies may be obtained from the 
Southern Nurserymen's Association, 1000 
Johnson Ferry Road, Suite E-130, Marietta, 
GA 30068-2100 at a cost of thirty -five dollars 
($35.00). The materials related to nutrient 
management plans for turfgrass, nursery crops 
and greenhouse production are hereby 
incorporated by reference including any 
subsequent amendments and editions and are 
available for inspection at the Department of 
Environment and Natural Resources Library, 
512 North Salisbury Street, Raleigh, North 
Carolina. 

(2) The person who writes the nutrient management plan 
shall have the plan approved in writing by a technical 
specialist. Appropriate technical specialists shall be 
as follows. 

(A) Nutrient management plans for cropland and 
application of dry poultry litter shall be 
approved by a technical specialist designated 
pursuant to Rules adopted by the Soil and 
Water Conservation Commission. 

(B) Nutrient management plans for turfgrass and 
nurserv' crops and greenhouse production shall 
be approved by a technical specialist 
designated pursuant to Rules adopted by the 
Commission. 

( 3 ) Nutrient management plans and supporting documents 
must be kept on-site or be produced within 24 hours 
of a request by the Division. 

(4) The Division shall develop model nutrient 
management plans in consultation with the 
Cooperative Extension Service. The model plans 
shall address both nittogen and phosphorus, and shall 
address the source of nutrients, the amount of nutrient 
applied, the placement of nutrients, and the timing of 
nutrient applications. 

(f) COMPLIANCE. Persons who fail to comply with this 
Rule are subject to enforcement measures authorized in G.S. 
I43-215.6A (civil penalties), G.S. I43-215.6B (criminal 
penalties), and G.S. 143-215. 6C (injunctive relief). 

ALTERNATIVE 2 

Same as alternative 1 with the exception of (2)(a), which would 
read: 
(a) APPLICABILITY. This Rule shall apply as follows. 
(I) This Rule shall apply to the following persons who 
apply nutrients to their lands: 



13:23 



NORTH CAROLINA REGISTER 



June 1, 1999 



1910 



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imirifnirinriTi '■ -"* 



RULE-MAKING PROCEEDINGS 



(A) Persons who own or manage cropland areas for 
commercial purposes that have not developed 
a nutrient management plan for their propertv 
pursuant to 15A NCAC 2B .0256. 

(B) Persons who own or manage commercial 
floriculture areas, ornamental areas and 
greenhouse production areas. 

(C) Persons who own or manage golf courses. 



recreational lands, rights-of-way, or other 
turfgrass areas. 
(D) Persons who own or manage lawn and garden 
areas in residential, commercial, or industrial 
developments except for residential 
landowners that apply fertilizer to their own 
property. 



URBAN STORMWATER 



A team met to develop a Rule that will achieve the basin nitrogen and phosphorus goals from urban stotmwater. The team held 
a total of seven meetings. 



PARTICIPANTS 



MAJOR ISSUES 
DISCUSSED 



DECISIONS 
REACHED 



ISSUES ON WHICH 

CONSENSUS WAS 
NOT REACHED 



STEERING 

COMMITTEE 

COMMENTS 



Team meetings had variable attendance. Altogether, five state agencies, five local 
governments, three industry groups, one environmental organization, and one university 
professor participated. 

• The significance of urban stormwater as a source of nutrients to the estuary. 

• Best management practices that treat stormwater. 

• Concerns with the Neuse Stormwater Rule as a template. 

• Which local governments should be covered by the Rule. 

• Requirements for existing and new development. 

• The team determined that the portion of the basin land area identified as urban 
underrepresents the significant contribution of stormwater from developed areas to the 
total nonpoint source nutrient load to the estuary. 

• The team agreed to the requirements of the Neuse Stormwater Rule, except for the two 
following changes. 

It established specific thresholds for the size of local governments affected by the 
Rule: 5,000 for municipalities or 30,000 for counties This encompasses 83% of 
the basin's population. It also added an automatic threshold; local governments 
will become subject to the Rule once they reach these thresholds. 
It added two elements to the local governments" stormwater management 
programs: a requirement to prioritize potential retrofit sites and a requirement to 
map municipal storm sewer and sanitary sewer systems. 

• The team did not agree on specific nutrient reduction requirements for new 
development. Some team members felt that they lacked adequate information on the 
economic impacts of nutrient requirements to make informed decisions. Since the 
team did not develop an alternative approach for controlling nutrients from new 
development, the Rule language below reflects that used in the Neuse Stormwater Rule 
with values adjusted for the Tar-Pamlico basin. 

• The team did not agree on whether to require structural retrofitting of existing 
development. Some team members felt that the Rule would not achieve its objectives 
without requirements to address runoff from existing development. Others felt that 
retrofitting would be too expensive and difficult to require. The team agreed to 
additional requirements for existing development as described in the second bullet 
above, short of requiring structural retrofitting. 

The Steering Committee raised some technical questions about Rule implementation. 
However, it had no significant concerns with the team's proposed stormwater Rule. 



The following Rule language reflects stormwater team consensus with exceptions noted above. 



.0258 TAR-PAMLICO RIVER BASIN-NUTRIENT 
SENSITIVE WATERS MANAGEMENT 



STRATEGY: BASINWIDE STORMWATER 
REQUIREMENTS 



1911 



NORTH CAROLINA REGISTER 



June 1, 1999 



13:23 



RULE-MAKING PROCEEDINGS 



(a) PURPOSE. The purpose of this Rule is to achieve a 30 
percent reduction in nutrient loading from existing and new 
developments. The purpose of this Rule is also to provide 
control for peak flows in new development to ensure that the 
functions of existing riparian buffers are not compromised by 
channel erosion. 

(b) APPLICABILITY. This Rule shall apply to local 
governments in the Tar-Pamlico basin according to the following 
criteria. 

(1) This Rule shall appK to the following municipal 
areas: 

(A) Greenville 

(B) Henderson 

(C) Oxford 

(D) Rocky Mount 

(E) Tarboro 

(F) Washington 

(2) This Rule shall apply to the following counties: 

(A) Beaufort 

(B) Edgecombe 

(C) Franklin 

(D) Halifax 

(E) Nash 

(F) Pitt 

(3) Additional local governments shall become subject to 
this Rule upon meeting the following criteria: 

(A) Active incorporated municipal areas with 
populations exceeding 5.000 persons according 
to the most recent population estimates listed in 
the most recent annual publication of North 
Carolina Municipal Populations. Office of 
State Planning. If a municipal area has onl\ a 
portion of its area within the Tar-Pamlico River 
basin, then the percentage of the municipality's 
area within the basin shall be multiplied by the 
population estimate; if the result is less than 
5.000. then the municipal area shall not be 
subject to this Rule. 

(B) Counties with populations exceeding 30.000 
persons according to the population estimates 
listed in the most recent annual publication 
North Carolina Municipal Populations. Office 
of State Planning. If a county has only a 
portion of its area within the Tar-Pamlico River 
basin, then the percentage of the county's area 
within the basin shall be multiplied by the 
population estimate; if the result is less than 
30.000. then the county shall not be subject to 
this Rule. 

(c) REQUIREMENTS. All local governments subject to this 
Rule shall develop stomiwater management programs for 
submission to and approval by the Commission. The stormwater 
program shall include the following components at a minimum: 

(I) A requirement that developers submit a stormwater 
management plan for all new developments proposed 
within their jurisdictions. These stormwater plans 
shall not be approved by the subject local 
governments unless the following criteria are met: 



(A) The nitrogen load contributed by the proposed 
new development activity shall not exceed 4.0 
pounds per acre per year This is equivalent to 
70 percent of the average nitrogen load 
contributed by the non-urban areas in the Tar- 
Pamlico River basin based on 1995 land use 
data. The Commission may periodically update 
the design standard based on the availability of 
new scientific information. 

(B) The phosphorus load contributed by the 
proposed new development activity shall not 
exceed 0.4 pounds per acre per year. This is 
equivalent to the average phosphorus load 
contributed by the non-urban areas in the Tar- 
Pamlico River basin based on 1995 land use 
data. The Commission may periodically update 
the design standard based on the availability of 
new scientific information 

(C) The new development activity does not result 
in a net increase in peak flow leaving the site 
from the predevelopment conditions for the I- 
year. 24-hour storm. 

(2) A public education program to inform citizens of how 
to reduce nutrient pollution and to inform developers 
about the nutrient and flow control requirements set 
forth in Sub-Item (3)(a)(i). 

(3) A mapping program that includes major components 
of the municipal separate stomi sewer system, waters 
of the State, land use types, and location of sanitary 
sewers. 

(4) A program to identifS and remove illegal discharges. 

(5) A program to identify' and prioritize opportunities to 
achieve nutrient reductions from existing developed 
areas. 

(6) A program to ensure maintenance of BMPs 
implemented as a result of the provisions in Sub-Items 
(3)(a)and(3)(e). 

(7) A program to ensure enforcement and compliance 
with the provisions in Sub-Item (3){a). 

(d) TIMEFRAME FOR IMPLEMENTATION. The 
timeframe for implementing the stormwater management 
program shall be as follows: 

(1) Within 12 months of the effective date of this Rule, 
the Division shall submit a model local stormwater 
program to the Commission for approval. The 
Division shall work in cooperation with subject local 
governments in developing this model program. 

(2) Within 12 months of the Commission's approval of 
the model local stormwater program or within 12 
months of a local government's later designation 
pursuant to Sub-Item (2)(c). subject local 
governments shall submit their local stormwater 
management programs to the Commission for review 
and approval. These local programs shall equal or 
exceed the requirements in Item (3) of this Rule. 

(3) Within 18 months of the Commission's approval of 
the model local stormwater program or within 18 
months of a local government's later designation 



13:23 



NORTH CAROLINA REGISTER 



June 1, 1999 



1912 



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HKHMiOmjJ&JUfiUllHIT^BI^Qt^KCiliaik 



"^^'^^^^'t^TTnmr^ i rni' i n i 'ffi 



RULE-MAKING PROCEEDINGS 



pursuant to Sub-Item (2)(c), subject local 

governments shall adopt and implement their 

approved local stormwater management program. 

(4) Local governments administering a stomiwater 

management program shall submit annual reports to 

the Division documenting their progress and net 

changes to nitrogen load by October 30 of each year. 

(e) COMPLIANCE. A local government that fails to submit 

an acceptable local stormwater management program within the 

timeframe established in this Rule or fails to implement an 

approved program shall be in violation of this Rule. In this case, 

the stormwater management requirements for its jurisdiction 

shall be administered through the NPDES municipal stormwater 

permitting program per 15A NCAC 2H .0126. Any local 

government that is subject to an NPDES municipal stormwater 

permit pursuant to this Rule shall: 

( 1 ) Develop and implement comprehensive stormwater 
management program to reduce nutrients from both 
existing and new development. This stormwater 
management program shall meet the requirements of 
Item (3) of this Rule for new and existing 
development. 

(2) Be subject to the NPDES permit for at least one 
permitting cycle (five years) before it is eligible to 
submit a local stormwater management program to the 
Commission for consideration and approval. 

RIPARIAN AREA PROTECTION 

The Steering Committee agreed to pursue Rulemaking to 
protect existing riparian areas, as was done in the Neuse basin. 
In 1998 under House Bill 1402, the General Assembly called for 
establishment of a stakeholder advisory committee to revise the 
Neuse basin's riparian area protection Rule, 15A NCAC 2B 
.0233. The Steering Committee agreed to monitor the progress 
of the Neuse Buffer Stakeholder Advisory Committee, and to 
convene a similar team for the Tar-Pamlico basin only if it found 
significant deficiencies with these efforts. A separate team was 
not convened for the Tar-Pamlico basin. 

DWQ staflF recommends that the EMC send a Riparian Buffer 
Rule for the Tar-Pamlico basin, with the same provisions as the 
Neuse Riparian Buffer Rule (with appropriate modifications for 
the Tar-Pamlico basin), out to public hearings along with the 
other draft Rules in this report. That set of Rules follows. 

.0259 TAR-PAMLICO RIVER BASIN NUTRIENT 
SENSITIVE WATERS MANAGEMENT 
STRATEGY: PROTECTION AND 

MAINTENANCE OF RIPARIAN BUFFERS 

(a) PURPOSE. The purpose of this Rule shall be to protect 
and preserve riparian buffers in the Tar-Pamlico River Basin to 
maintain their nutrient removal functions. 

(b) DEFINITIONS. For the purpose of this Rule, these terms 
shall be defined as follows. 

( 1 ) 'Channel' means a natural water-carrying trough cut 
vertically into low areas of the land surface b\ erosive 
action of concentrated flowing water or a ditch or 
canal excavated for the flow of water, (current 



definition in Forest Practice Guidelines Related to 
Water Quality, 15ANCAC II .0102) 

(2) 'DBH' means Diameter at Breast Height of a tree, 
which is measured at 4.5 feet above ground surface 
level. 

(3) 'Ditch or canal' means a man-made channel other than 
a modified natural stream constructed for drainage 
purposes that is typically dug through inter-stream 
divide areas. A ditch or canal may have flows that are 
perennial, intermittent, or ephemeral and may exhibit 
hydrological and biological characteristics similar to 
perennial or intermittent streams. 

(4) 'Ephemeral (stormwater) stream' means a feature that 
carries only stormwater in direct response to 
precipitation with water flowing only during and 
shortly after large precipitation events. An ephemeral 
stream may or may not have a well-defined channel, 
the aquatic bed is always above the water table, and 
stormwater runoff is the primary source of water. An 
ephemeral stream typically lacks the biological, 
hydrological, and physical characteristics commonly 
associated with the continuous or intermittent 
conveyance of water. 

(5) 'Forest plantation' means an area of planted trees that 
may be conifers (pines) or hardwoods. On a 
plantation, the intended crop trees are planted rather 
than naturally regenerated from seed on the site, 
coppice (sprouting), or seed that is blown or carried 
into the site. 

(6) 'High Value Tree' means a tree that meets or exceeds 
the following standards: for pine species, 14-inch 
DBH or greater or 18-inch or greater stump diameter: 
and, for hardwood or wetland species, 16-inch DBH 
or greater or 24-inch or greater stump diameter. 

(7) 'Intermittent stream' means a well-defined channel that 
contains water for only part of the year, topically 
during winter and spring when the aquatic bed is 
below the water table. The flow may be heavily 
supplemented by stormwater runoff An intermittent 
stream often lacks the biological and hydrological 
characteristics commonly associated with the 
continuous conveyance of water. 

(8) 'Modified natural stream' means an on-site 
channelization or relocation of a stream channel and 
subsequent relocation of the intermittent or perennial 
flow as evidenced by topographic alterations in the 
immediate watershed. A modified natural stream 
must have the typical biological, hydrological, and 
physical characteristics commonly associated with the 
continuous conveyance of water. 

(9) 'Perennial stream' means a well-defined channel that 
contains water year round during a year of normal 
rainfall with the aquatic bed located below the water 
table for most of the year. Groundxsater is the 
primary source of water for a perennial stream, but it 
also carries stormwater runoff A perennial stream 
exhibits the typical biological, hydrological, and 



1913 



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June 1, 1999 



13:23 



RULE-MAKING PROCEEDINGS 



physical characteristics commonly associated with the 
continuous conveyance of water. 

(10) 'Perennial waterbody' means a natural or man-made 
basin that stores surface water pemianently at depths 
sufficient to preclude growth of rooted plants, 
including lakes, ponds, sounds, non-stream estuaries 
and ocean. For the purpose of the State's riparian 
area protection program, the waterbod\' must be part 
of a natural drainageway (i.e. connected by surface 
flow to a stream). 

(11) 'Stream' means a body of concentrated flowing water 
in a natural low area or natural channel on the land 
surface. 

(12) 'Tree' means a woody plant with a DBH equal to or 
exceeding 5-inches. 

(c) APPLICABILITY. This Rule shall apply to 50-foot wide 
riparian buffers directly adjacent to surface waters in the Tar- 
Pamlico River Basin (intermittent streams, perennial streams, 
lakes, ponds, and estuaries), e.xcluding wetlands. The riparian 
buffers protected by this Rule shall be measured pursuant to 
Item (4) below. For the purpose of this Rule, a surface water 
shall be present if the feature is approximately shown on either 
the most recent version of the soil survey map prepared by the 
Natural Resources Conservation Service of the United States 
Department of Agriculture or the most recent version of the 
1:24.000 scale (7.5 minute) quadrangle topographic maps 
prepared b> the United States Geologic Survey (USGS). 
Riparian buffers adjacent to surface waters that do not appear on 
either of the maps shall not be subject to this Rule. Riparian 
buffers adjacent to surface waters that appear on the maps shall 
be subject to this Rule unless one of the following applies. 

(1) EXEMPTION WHEN AN ON-SITE 
DETERMINATION SHOWS THAT SURFACE 
WATERS ARE NOT PRESENT When a landowner 
or other affected party believes that the maps have 
inaccurately depicted surface waters, he or she shall 
consult the Division or the appropriate delegated local 
authority. Upon request, the Division or delegated 
local authority shall make on-site determinations. Any 
disputes over on-site determinations shall be referred 
to the Director in writing. A determination of the 
Director as to the accuracy or application of the maps 
is subject to review as provided in Articles 3 and 4 of 
Chapter 1 50B of the General Statutes. Surface waters 
that appear on the maps shall not be subject to this 
Rule if an on-site determination shows that they fall 
into one of the following categories. 

(A) Ditches and manmade conveyances other than 
modified natural streams. 

(B) Manmade ponds and lakes that are located 
outside natural drainage ways. 

(C) Ephemeral (stormwater) streams. 

(2) EXEMPTION WHEN EXISTING USES ARE 
PRESENT AND ONGOING. This Rule shall not 
apply to portions of the riparian buffer where a use is 
existing and ongoing according to the following. 
(A) A use shall be considered existing if it was 

present within the riparian area as of . 



Existing uses shall include, but not be limited 

to. agriculture, buildings, industrial facilities, 

commercial areas, transportation facilities, 

maintained lawns, utility lines and on-site 

sanitan. sewage systems. OnK' the portion of 

the riparian area that contains the footprint of 

the existing use is exempt from this Rule. 

Activities necessan, to maintain uses are 

allowed provided that no additional vegetation 

is removed from Zone 1 , existing diffuse flow 

is maintained, and surface waters are not 

disturbed. Grading and revegetating Zone 2 is 

allowed provided that the health of the 

vegetation in Zone I is not compromised, the 

ground is stabilized and existing diffuse flow is 

maintained. 

(B) At the time an existing use is converted to 

another use. this Rule shall appl\. An existing 

use shall be considered to be converted to 

another use if any of the following applies; 

(i) Impervious surface is added to the 

riparian buffer in locations where it did 

not exist previously. 

(ii) An agricultural operation within the 

riparian buffer is taken out of 

production. 

(iii) A lawn within the riparian buffer ceases 

to be maintained. 

(d) ZONES OF THE RIPARIAN BUFFER. The protected 

riparian buffer shall have two zones as follows: 

(1) Zone I shall consist of a vegetated area that is 
undisturbed except for uses provided for in Item (6). 
The location of Zone I shall be as follows: 

(A) For intermittent and perennial streams. Zone 1 
shall begin at the most landward limit of the 
top of bank or the rooted herbaceous vegetation 
and extend landward a distance of 30 feet on 
all sides of the surface water, measured 
horizontally on a line perpendicular to the 
surface water. 

(B) For ponds, lakes and reservoirs located within 
a natural drainage way. Zone I shall begin at 
the most landward limit of the normal water 
level or the rooted herbaceous vegetation and 
extend landward a distance of 30 feet, 
measured horizontalK on a line perpendicular 
to the surface water. 

(C) For surface waters within the 20 Coastal 
Counties (defined in 15A NCAC 2B .0202) 
within the jurisdiction of the Division of 
Coastal Management, Zone 1 shall begin at the 
most landward limit of the normal high water 
level, the normal water level, or the landward 
limit of coastal wetlands as defined by the 
Division of Coastal Management and extend 
landward a distance of 30 feet, measured 
horizontally on a line perpendicular to the 
surface water. 



13:23 



NOR TH CAROLINA REGISTER June 1, 1 999 



19 1 4 



RULE-MAKING PROCEEDINGS 



(2) Zone 2 shall consist of a stable, vegetated area that is 
undisturbed except for activities and uses provided for 
in Item (6). Grading and revegetating Zone 2 is 
allowed provided that the health of the vegetation in 
Zone 1 is not compromised. Zone 2 shall begin at the 
outer edge of Zone I and extend landward 20 feet as 
measured horizontally on a line perpendicular to the 
surface water. The combined width of Zones 1 and 2 
shall be 50 feet on all sides of the surface water, 
(e) DIFFUSE FLOW REQUIREMENT. Diffuse flow of 
runoff shall be maintained in the riparian buffer by dispersing 



concentrated flow and reestablishing vegetation. 

( 1 ) Concentrated runoff from new ditches or manmade 
conveyances shall be converted to diffuse flow before 
the runoff enters the riparian buffer. 

(2) Periodic corrective action to restore diffuse flow shall 
be taken if necessary to impede the formation of 
erosion gullies. 

(f) TABLE OF USES. The following chart sets out the uses 
and their designation under this Rule as exempt, allowable, 
allowable with mitigation, or prohibited. The requirements for 
each category are given in Item (7). 



c 





Exempt 


Allowable 


Allowable 

with 
Mitigation 


Prohibited 


Airport facilities: 

• Airport facilities that impact equal to or less than 1 50 linear feet or one- 
third of an acre of riparian buffer 

• Airport facilities that impact greater than 1 50 linear feet or one-third of 
an acre of riparian buffer 




X 


X 




Archaeological activities 


X 








Bridges 




X 






Dam maintenance activities 


X 








Drainage ditches, roadside ditches and stormwater outfalls through 
riparian buffers: 

• Existing drainage ditches, roadside ditches, and stormwater outfalls 
provided that the> are managed to minimize the sediment, nutrients and 
other pollution they convex' to waterbodies 

• New drainage ditches, roadside ditches and stormwater outfalls 
provided that a stormwater management facilit\ is installed to control 
nitrogen and attenuate flow before the conveyance discharges through 
the riparian buffer 

• New drainage ditches, roadside ditches and stormwater outfalls that do 
not provide control for nitrogen before discharging through the riparian 
buffer 

• Excavation of the streambed in order to bring it to the same elevation as 
the invert of a ditch 


X 


X 




X 

X 


Drainage of a pond in a natural drainage way provided that a new riparian 
buffer that meets the requirements of Items (4) and (5) is established 
adjacent to the new channel 


X 








Driveway crossings: 

• Driveway crossings on single family residential lots that disturb equal 
to or less than 25 linear feet or 2.500 square feet of riparian buffer 

• Driveway crossings on single family residential lots that disturb greater 
than 25 linear feet or 2.500 square feet of riparian buffer 

• In a subdivision that cumulatively disturb equal to or less than 1 50 
linear feet or one-third of an acre of riparian buffer. 

• In a subdivision that cumulatively disturb greater than 1 50 linear feet or 
one-third of an acre of riparian buffer 


X 


X 
X 


X 




Fences provided that disturbance is minimized and installation does not 
result in removal of forest vegetation 


X 








Forest harvesting - see Item (II) of this Rule. 










Fertilizer application: 

• One-time fertilizer application to establish replanted vegetation 

• Ongoing fertilizer application 


X 






X 


Grading and revegetation in Zone 2 onK provided that diffuse flow and 


X 









€ 



1915 



NORTH CAROLINA REGISTER 



June 1, 1999 



13:23 



RULE-MAKING PROCEEDINGS 



the health of existing vegetation in Zone 1 is not compromised and 
disturbed areas are stabilized. 










Green\va\ trails 




X 






Historic preservation 


X 








Landfills 








X 


Mining activities 

Mining activities that are covered by the Mining Act provided that new 

riparian buffers that meet the requirements of Items (4) and (5) are 

established adjacent to the relocated channels. 

• Mining activities that are not covered by the Mining Act OR where new 

riparian buffers that meet the requirements of Items (4) and (5) are 

NOT established adjacent to the relocated channels. 




X 


X 




Non-electric utility lines; 

• Impacts other than perpendicular crossings in Zone 2 only 

• Impacts other than perpendicular crossings in Zone 1 

• Perpendicular crossings that disturb equal to or less than 40 linear feet 
of riparian buffer 

• Perpendicular crossings that disturb greater than 40 linear feet but equal 
to or less than 150 linear feet of riparian buffer 

• Perpendicular crossings that disturb greater than 1 50 linear feet of 
riparian buffer 


X 


X 
X 


X 
X 




• On-site sanitarv sewage svstems - new ones that use ground adsorption 






X 


Overhead electric utility lines provided that: 

• There is no land disturbance or removal of undergrowlh vegetation less 
than 15 feet tall within 10 feet of a waterbody. 

• DWQ is notified of the impact, and 

• Construction and maintenance activities comply with the listed BMPs' 
Overhead electric utilits lines that do not meet the criteria listed above. 


X 


X 






Periodic maintenance of modified natural streams such as canals and a 
grassed travel way on one side of the surface water when alternative forms 
of maintenance access are not practical 




X 






Playground equipment; 

• Pla\ground equipment on single family lots provided that installation 
and use does not result in removal of vegetation 

• Playground equipment installed on lands other than single-family lots 
or that requires removal of vegetation 


X 


X 






Ponds in natural drainage ways; 

• New ponds provided that a riparian buffer that meets the requirements 
of Items (4) and (5) is established adjacent to the pond 

• New ponds where an appropriate riparian buffer that meets the 
requirements of Items (4) and (5) is NOT established adjacent to the 
pond 




X 


X 




Protection of existing structures and facilities when this requires 
additional disturbance of the riparian buffer or the stream channel 




X 






Railroad crossings: 

• Railroad crossings that impact equal to or less than 1 50 linear feet or 
one-third of an acre of riparian buffer 

• Railroad crossings that impact greater than 1 50 linear feet or one-third 
of an acre of riparian buffer 




X 


X 




Removal of previous fill or debris provided that diffuse flow and any 
vegetation removed is restored. 


X 








Road crossings; 

• Road crossings that impact equal to or less than 1 50 linear feet or one- 
third of an acre of riparian buffer 

• Road crossings that impact greater than 1 50 linear feet or one-third of 
an acre of riparian buffer 




X 


X 





13:23 



NORTH CAROLINA REGISTER 



June 1, 1999 



1916 



llflmTM'lUBHIISimir ■' rihinjJjm~«iiwr.-.»-rw 



BaaaBBatBBia 



RULE-MAKING PROCEEDINGS 



Scientitlc studies and stream gauging 


X 








Stormwater management ponds: 

• New stomivvater management ponds provided that a riparian buffer that 
meets the requirements of Items (4) and (5) is established adjacent to 
the pond 

• New stormwater management ponds where a riparian buffer that meets 
the requirements of Items (4) and (5) is NOT established adjacent to the 
pond 




X 


X 




Stream restoration 


X 








Streambank stabilization 




X 






Temporary roads: 

• Temporar>' roads that disturb less than or equal to 2.500 square feet 
provided that vegetation is restored within six months. 

• Temporary roads that disturb greater than 2,500 square feet provided 
that vegetation is restored u ithin six months. 


X 


X 






Temporarv sediment and erosion control devices: 

• In Zone 2 only provided that the vegetation in Zone 1 is not 
compromised and that discharge is released as diffuse flow in 
accordance with Item (5). 

• In Zones 1 and 2 to control impacts associated w ith uses approved by 
the Division or that have received a variance provided that sediment 
and erosion control for upland areas is addressed to the maximum 
extent practical outside of the riparian buffer. 

• In-stream temporary erosion and sediment control measures for work 
within a stream channel. 


X 

X 


X 






Underground electric utility lines provided that: 

• DWQ is notified of the impact, and 

• Construction and maintenance activities comply with the listed BMPs" 
Underground electric utility lines that do not meet the criteria listed 
above. 


X 


X 






Vegetation management: 

• Emergency fire control measures provided that topography is restored 

• Periodic mowing and harvesting of plant products in Zone 2 only 

• Planting vegetation to enhance the riparian buffer 

• Pruning forest vegetation provided that the health and function of the 
forest vegetation is not compromised 

• Removal of individual trees which are in danger of causing damage to 
dwellings, other structures or human life 

• Removal of poison ivy 

• Removal of understory nuisance vegetation as defined in: Smith, 
Cherri L. 1998. Exotic Plant Guidelines. Depailment of Environment 
and Natural Resources. Division of Parks and Recreation. Raleigh. NC. 
Guideline #f30. 


X 
X 
X 

X 

X 

X 
X 




• 




Water dependent structures as defined in 1 5A NCAC 2B .0202 




X 






Water supply reservoirs: 

• New reservoirs provided that a riparian buffer that meets the 
requirements of Items (4) and (5) is established adjacent to the reservoir 

• New reservoirs where a riparian buffer that meets the requirements of 
Items (4) and (5) is NOT established adjacent to the reservoir 




X 


X 




Water wells 


X 








Wetland restoration 


X 









' The BMPs for overhead utility lines within the riparian buffer 
are as follows; 

• Woody vegetation shall be cleared by hand. No land grubbing 
or grading is allowed. 



Vegetative root systems shall be left intact to maintain the 
integritv of the soil. Stumps shall remain where trees are cut. 
Rip rap shall not be used unless it is necessary to stabilize a 
tower. 



1917 



NORTH CAROLINA REGISTER 



June 1, 1999 



13:23 



RULE-MAKING PROCEEDINGS 



• Towers shall not be placed within 10 feet of the stream bank 
and riprap shall not be installed unless necessar>' to stabilize 
the tower. 

• No fertilizer shall be used in Zone 1 other than a one-time 
application to re-establish vegetation. 

• Construction activities shall minimize the removal of woody 
vegetation, the extent of the disturbed area, and the time in 
which the areas remain in a disturbed state. 

• A minimum zone of 10 feet u ide immediately adjacent to the 
stream bank shall be managed to retain undergrowth 
vegetation less than 15 feet tall. 

• Active measures shall be taken after construction and during 
routine maintenance to ensure diffuse flow of stormwater 
through the buffer. 

• In wetlands, mats shall be utilized to minimize soil 
disturbance. 

"The BMPs for underground electric utility lines within the 
riparian buffer are that: 

• Underground cables shall be installed by vibratory plow or 
trenching. 

• The trench shall be backfilled with the excavated soil material 
immediately following cable installation. 

(g) REQUIREMENTS FOR CATEGORIES OF USES. Uses 
designated as exempt, allowable, allowable with mitigation, and 
prohibited in Item (6) shall have the following requirements: 

(1) EXEMPT. Uses designated as exempt are allowed 
within the riparian buffer. Exempt uses shall be 
designed, constructed and maintained to minimize soil 
disturbance and to provide the maximum water quality 
protection practicable. In addition, exempt uses shall 
meet requirements listed in Item (6) for the specific 
use. 

(2) ALLOWABLE. Uses designated as allowable may 
proceed within the riparian buffer provided that there 
are no practical alternatives to the requested use 
pursuant to Item (8). These uses require written 
authorization from the Division or the delegated local 
authority. 

(3) ALLOWABLE WITH MITIGATION. Uses 
designated as allowable with mitigation may proceed 
within the riparian buffer provided that there are no 
practical alternatives to the requested use pursuant to 
Item (8) and an appropriate mitigation strategy has 
been approved pursuant to Item (10). These uses 
require written authorization from the Division or the 
delegated local authority. 

(4) PROHIBITED. Uses designated as prohibited may 
not proceed within the riparian buffer unless a 
variance is granted pursuant to Item (9). 

(h) DETERMINATION OF "NO PRACTICAL 

ALTERNATIVES." Persons who wish to undertake uses 
designated as allowable or allowable with mitigation shall 
submit a request for a "no practical alternative" determination to 
the Division or to the delegated local authority. The applicant 
shall certify that the criteria identified in Sub-Item (8)(a) are met. 
The Division or the delegated local authority shall grant an 
Authorization Certificate upon a "no practical alternatives" 



determination. The procedure for making an Authorization 
Certificate shall be as follows: 

( 1 ) For any request for an Authorization Certificate, the 
Division or the delegated local authority shall review 
the entire project and make a finding of fact as to 
whether the following requirements have been met in 
support of a "no practical alternatives" determination: 

(A) The basic project purpose cannot be practically 
accomplished in a manner that would better 
minimize disturbance, preserve aquatic life and 
habitat, and protect water quality". 

(B) The use cannot practically be reduced in size or 
density, reconfigured or redesigned to better 
minimize disturbance, preserve aquatic life and 
habitat, and protect water quality. 

(C) Best management practices will be used if 
necessary to minimize disturbance, preserve 
aquatic life and habitat, and protect water 
quality. 

(2) Requests for an Authorization Certificate shall be 
reviewed and either approved or denied within 60 
days of receipt of a complete submission based on the 
criteria in Sub-Item (8)(a) above by either the 
Division or the delegated local authority. Failure to 
issue an approval or denial within 60 days shall 
constitute that the applicant has demonstrated "no 
practical alternatives." The Division or the delegated 
local authority may attach conditions to the 
Authorization Certificate that support the purpose, 
spirit and intent of the riparian buffer protection 
program. Complete submissions shall include the 
following: 

(A) The name, address and phone number of the 
applicant; 

(B) The nature of the activity to be conducted by 
the applicant; 

(C) The location of the activity, including the 
jurisdiction; 

(D) A map of sufficient detail to accurately 
delineate the boundaries of the land to be 
utilized in carrying out the activity, the location 
and dimensions of any disturbance in riparian 
buffers associated with the activity-, and the 
extent of riparian buffers on the land; 

(E) An explanation of why this plan for the activity 
cannot be practically accomplished, reduced or 
reconfigured to better minimize disturbance to 
the riparian buffer, preserve aquatic life and 
habitat and protect water quality; and 

(F) Plans for any best management practices 
proposed to be used to control the impacts 
associated with the activity. 

(3) Any disputes over determinations regarding 
Authorization Certificates shall be referred to the 
Director for a decision. The Director's decision is 
subject to review as provided in Articles 3 and 4 of 
Chapter 150B of the General Statutes. 



13:23 



NORTH CAROLINA REGISTER 



June I, 1999 



1918 



IWin>PT"tfV»ii;HMH4my?7TggMg'8HHHB^fWip«aa3 



KOjrT^HKHKT^^.^^ ■ -.^^,1=™t=» 



RULE-MAKING PROCEEDINGS 



(i) VARIANCES. Persons who wish to undertake uses 
designated as prohibited have the option of pursuing a variance. 
The Division or the appropriate delegated local authority may 
grant minor variances. The variance request procedure shall be 
as follows: 

(1) For any variance request, the Division or the 
delegated local authority shall make a finding of fact 
as to whether the following requirements have been 
met: 

(A) There are practical difficulties or unnecessary 
hardships that prevent compliance with the 
strict letter of the riparian buffer protection 
requirements; 

(B) The variance is in harmony with the general 
purpose and intent of the State's riparian buffer 
protection requirements and preserves its spirit; 
and 

(C) In granting the variance, the public safety and 
welfare have been assured and substantial 
justice has been done. 

(2) MINOR VARIANCES. A minor variance request 
pertains to activities that are proposed only to impact 
any portion of Zone 2 of the riparian buffer. Minor 
variance requests shall be reviewed and approved 
based on the criteria in Sub-Item (9)(a) above by the 
either the Division or the delegated local authority 
pursuant to G.S. 153 A- Article 18, or G.S. 160A- 
Article 19. The Division or the delegated local 
authority may attach conditions to the variance 
approval that support the purpose, spirit and intent of 
the riparian buffer protection program. Requests for 
appeals of decisions made by the Division shall be 
made to the Office of Administrative Hearings. 
Request for appeals made by the delegated local 
authority shall be made to the appropriate Board of 
Adjustment under G.S. 160A-388 or G.S. 153A-345. 

(3) MAJOR VARIANCES. A major variance request 
pertains to activities that are proposed to impact any 
portion of Zone I or any portion of both Zones 1 and 
2 of the riparian buffer. If the Division or the 
delegated local authority has determined that a major 
variance request meets the requirements in Sub-Item 
(9)(a), then it shall prepare a preliminary finding and 
submit it to the Commission. The Commission shall 
review preliminary findings on major variance 
requests within 90 days after receipt by the Director. 
Requests for appeals of determinations that the 
requirements of Sub-Item(9)(a) have not been met 
shall be made to the Office of Administrative 
Hearings for determinations made by the Division or 
the appropriate Board of Adjustments under G.S. 160- 
A-388 or G.S. I53A-345 for determinations made by 
the delegated local authority. The purpose of the 
Commission's review is to determine if it agrees that 
the requirements in Sub-Item (9)(a) have been met. 
Requests for appeals of decisions made by the 
Commission shall be made to the Office of 
Administrative Hearings. The following actions shall 



be taken depending on the Commission's decision on 
the major variance request: 

(A) Upon the Commission's approval, the Division 
or the delegated local authority shall issue a 
final decision granting the major variance. 

(B) Upon the Commission's approval with 
conditions or stipulations, the Division or the 
delegated local authority shall issue a final 
decision, which includes these conditions or 
stipulations. 

(C) Upon the Commission's denial, the Division or 
the delegated local authority shall issue a final 
decision denying the major variance. 

(J) MITIGATION. Persons who wish to undertake uses 
designated as allowable with mitigation shall meet the following 
requirements in order to proceed with their proposed use. 

( 1 ) Obtain a determination of "no practical alternatives" 
to the proposed use pursuant to Item (8). 

(2) Obtain approval for a mitigation proposal pursuant to 
15ANCAC2B.0260. 

(k) REQUIREMENTS SPECIFIC TO FOREST 

HARVESTING. The following requirements shall apply for 
forest harvesting operation and practices. 

(1) The following measures shall apply in the entire 
riparian buffer: 

(A) Logging decks and sawmill sites shall not be 
placed in the riparian buffer. 

(B) Access roads and skid trails shall be prohibited 
except for temporary and permanent stream 
crossings established in accordance with 1 5A 
NCAC II .0203 of this Subchapter. Temporary 
stream crossings shall be permanently 
stabilized after any site disturbing activity is 
completed. 

(C) Timber felling shall be directed away from the 
stream or water body. 

(D) Skidding shall be directed away from the 
stream or water body and shall be done in a 
manner that minimizes soil disturbance and 
prevents the creation of channels and/or ruts. 

(E) Individual trees may be treated to maintain or 
improve their health, form or vigor. 

(F) Harvesting of dead or infected trees or 
application of pesticides necessary to prevent 
or control extensive tree pest and disease 
infestation shall be allowed. Tlie Division of 
Forest Resources must approve these practices 
for a specific site. The DFR must notify DWQ 
of all approvals. 

(G) Removal of individual trees that are in danger 
of causing damage to structures or human life 
shall be allowed. 

(H) Natural regeneration of forest vegetation and 
planting of trees, shrubs, or ground cover 
plants to enhance the riparian buffer shall be 
allowed provided that soil disturbance is 
minimized. Plantings shall consist primarily of 
native species. 



1919 



NORTH CAROLINA REGISTER 



June 1, 1999 



13:23 



RULE-MAKING PROCEEDINGS 



(1) High intensity prescribed bums shall not be 

allowed. 

(J) Application of fertilizer shall not be allowed 

except as necessary for permanent stabilization. 

Broadcast application of fertilizer and/or 

herbicides to the adjacent forest stand shall be 

conducted so that the chemicals are not applied 

directly to or allowed to drift into the riparian 

buffer. 

(2) In Zone 1. forest vegetation shall be protected and 

maintained. Selective harvest as provided for below 

is allowed on forest lands that have a deferment for 

use value under forestr>' in accordance with G.S. 105- 

277.2 through 277.6 or on forest lands that have a 

forest management plan prepared or approved by a 

registered professional forester. Copies of either the 

approval of the deferment for use value under forestry 

or the forest management plan shall be produced upon 

request. For such forest lands, selective harvest is 

allowed in accordance with the following: 

(A) Tracked or wheeled vehicles are not permitted 
except at stream crossings designed, 
constructed and maintained in accordance with 
15ANCAC 11 .0203. 

(B) Soil disturbing site preparation activities are 
not allowed. 

(C) Trees shall be removed with the minimum 
disturbance to the soil and residual vegetation. 

(D) The following provisions for selective 
harvesting shall be met: 

(i) In the first 1 feet of Zone I directly 

adjacent to the stream or waterbody 

shall be undisturbed except for the 

removal of individual high value trees as 

defined provided that no trees with 

exposed primary roots visible in the 

streambank be cut. 

(ii) In the outer 20 feet of Zone 1, a 

maximum of 50 percent of the trees 

greater than 5 inches dbh may be cut 

and removed. The reentry time for 

harvest shall be no more ft-equent than 

every 15 years, except on forest 

plantations where the reentry time shall 

be no more frequent than every 5 years. 

In either case, the trees remaining after 

harvest shall be as evenly spaced as 

possible. 

(ii) In Zone 2, harvesting and regeneration 

of the forest stand shall be allowed 

provided that sufficient ground cover is 

maintained to provide for diffusion and 

infiltration of surface runoff. 

(I) REQUIREMENTS SPECIFIC TO LOCAL 

GOVERNMENTS WITH STORMWATER PROGRAMS FOR 

NITROGEN CONTROL. Local governments that are required 

to have local stormwater programs pursuant to 1 5A NCAC 2B 



.0258 shall have two options for ensuring protection of riparian 
areas on new developments within their jurisdictions as follows. 

(1 ) Obtain authority to implement a local riparian buffer 
protection program pursuant to 1 5A NCAC 2B .0261. 

(2) Refrain from issuing local approvals for new 
development projects unless either: 

(A) The person requesting the approval does not 
propose to impact the riparian buffer of a 
surface water that appears on either the most 
recent versions of the soil survey maps 
prepared by the Natural Resources 
Conservation Service of the United States 
Department of Agriculture of the most recent 
versions of the 1:24,000 scale (7.5 minute 
quadrangle) topographic maps prepared by the 
United States Geologic Survey (USGS). 

(B) The person requesting the approval proposes to 
impact the riparian buffer of a surface water 
that appears on the maps described in Sub-Item 
(12)(b)(i) above and either: 

(i) Has received an on-site determination 
from the Division pursuant to Sub-Item 
(3)(a) that surface waters are not 
present; 
(ii) Has received an Authorization 
Certificate from the Division pursuant to 
Item (8) for uses designated as 
Allowable under this Rule; 
(iii) Has received an Authorization 
Certificate from the Division pursuant to 
Item (8) and obtained the Division's 
approval on a mitigation plan pursuant 
to Item (10) for uses designated as 
Allowable with Mitigation under this 
Rule; or 
(iv) Has received a variance from the 
Commission pursuant to Item (9). 
(m) OTHER LAWS, REGULATIONS AND PERMITS. In 
all cases, compliance with this Rule does not preclude the 
requirement to comply with all federal, state and local 
regulations and laws. 

.0260 M ITIG ATION PROGRAM FOR PROTECTION 
AND MAINTENANCE OF RIPARIAN BUFFERS 

(a) PURPOSE. The purpose of this Rule is to set forth the 
mitigation requirements that apply to the State's riparian buffer 
protection program. 

(b) APPLICABILITY. This Rule applies to persons who 
wish to impact a riparian buffer when one of the following 
applies: 

(1) A person has received an Authorization Certificate 
pursuant to 1 5 A NCAC 2B .0259 for a proposed use 
that is designated as "allowable with mitigation." 

(2) A person has received a variance pursuant to I5A 
NCAC 2B .0259 and is required to perform mitigation 
as a condition of a variance approval. 



13:23 



NORTH CAROLINA REGISTER 



June I, 1999 



1920 



ji[uaijuuiujrniijoi«>imtmgi«-j»-~rT.i i jrn-v.eT 



ajmjgw«.w»r.w.J, , .;.^~j» 



RULE-MAKING PROCEEDINGS 



(c) THE AREA OF MITIGATION. The required area of 
mitigation shall be determined b\ either the Division or the local 
delegated authority according to the following: 

( 1 ) The impacts in square feet to each zone of the riparian 
buffer shall be determined b\ the Division or the local 
delegated authority by adding the following: 

(A) The area of the footprint of the use causing the 
impact to the riparian buffer. 

(B) The area of the boundarv of any clearing and 
grading activities within the riparian buffer 
necessary to accommodate the use. 

(C) The area of any ongoing maintenance corridors 
within the riparian buffer associated with the 
use. 

(2) The required area of mitigation shall be determined by 
applying the following multipliers to the impacts 
determined in Sub-item 3(a) to each zone of the 
riparian buffer: 

(A) impacts to Zone I of the riparian buffer shall 
be multiplied by 3. 

(B) impacts to Zone 2 of the riparian buffer shall 
be multiplied by 1.5. 

(C) Impacts to wetlands within Zones I and 2 of 
the riparian buffer that are subject to mitigation 
under I5A NCAC 2H .0506 shall comply with 
the mitigation ratios in 15A NCAC 2H .0506. 

(d) THE LOCATION OF MITIGATION. The mitigation 
effort shall be located in the same physiographic region of the 
Tar-Pamlico River Basin as the proposed impact, or lower in the 
basin. The physiographic regions are mapped in . 

(e) ISSUANCE OF THE MITIGATION 
DETERMINATION. The Division or the local delegated 
authority shall issue a mitigation determination that specifies the 
required area and location of mitigation pursuant to Items (3) 
and (4). 

(f) OPTIONS FOR MEETING THE MITIGATION 
DETERMINATION. The mitigation determination made 
pursuant to Item (5) may be met through one of the following 
options: 

( 1 ) Payment of a compensatory mitigation fee to the 
Riparian Buffer Restoration Fund pursuant to Item 
(7). 

(2) Donation of real property or of an interest in real 
property pursuant to Item (8). 

(3) Restoration or enhancement of a riparian buffer that 
is not otherwise required to be protected. This shall 
be accomplished by the applicant after submittal and 
approval of a restoration plan pursuant to Item (9). 

(g) PAYMENT TO THE RIPARIAN BUFFER 
RESTORATION FUND. Persons who choose to satisfy their 
mitigation determination by paying a compensatory mitigation 
fee to the Riparian Buffer Restoration Fund shall meet the 
following requirements: 

(I) SCHEDULE OF FEES: The amount of payment into 
the Fund shall be determined by multiplying the acres 
or square feet of mitigation determination made 
pursuant to Item (5) by $0.96 per square foot or 
$41,625 per acre. 



(2) The required fee shall be submitted to the Division of 
Water Quality. Wetlands Restoration Program. P.O. 
Box 29535, Raleigh. NC 27626-0535 prior to any 
activity that results in the removal or degradation of A 
the protected riparian buffer for which a "no practical ▼ 
alternatives" determination has been made. 

(3) The payment of a compensatory mitigation fee may be 
fulK or partially satisfied b\ donation of real property 
interests pursuant to Item (8). 

(4) The fee outlined in Sub-item (7)(a) shall be reviewed 
every two years and compared to the actual cost of 
restoration activities conducted by the Department, 
including site identification, planning, 
implementation, monitoring and maintenance costs. 
Based upon this biennial review, revisions to Sub- 
item (7Ka) will be recommended when adjustments to 
this Schedule of Fees are deemed necessary. 

(h) DONATION OF PROPERTY. Persons who choose to 
satisfy' their mitigation determination by donating real property 
or an interest in real property shall meet the following 
requirements: 

( 1 ) The donation of real property interests ma\ be used to 
either partially or fully satisfy the payment of a 
compensatory mitigation fee to the Riparian Buffer 
Restoration Fund pursuant to Item (7). The value of 
the property interest shall be determined by an 
appraisal performed in accordance with Sub-item 
(8)(d)(iv). The donation shall satisfy' the mitigation 
determination if the appraised value of the donated 
property interest is equal to or greater than the 
required fee. If the appraised value of the donated 
property interest is less than the required fee 
calculated pursuant to Sub-item (7)(a), the applicant 
shall pay the remaining balance due. 

(2) The donation of conservation easements to satisfy 
compensatory mitigation requirements shall be 
accepted only if the conservation easement is granted 
in perpetuity. 

(3) Donation of real property interests to satisfy' the 
mitigation responsibility shall be accepted only if such 
property meets all of the following requirements: 

(A) The property shall be located within an area 
that is identified as a priority for restoration in 
the Basinwide Wetlands and Riparian 
Restoration Plan or shall be located at a site 
that is otherwise consistent with the goals 
outlined in the Basinwide Wetlands and 
Riparian Restoration Plan. 

(B) The property shall contain riparian buffers not 
currently protected by the State's riparian 
buffer protection program that are in need of 
restoration. 

(C) The restorable riparian buffer on the propertv 
shall have a minimum length of 1000 linear 
feet along a surface water and a minimum 
width of 50 feet as measured horizontally on a 
line perpendicular to the surface water. 



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(D) The size of the restorable riparian buffer on the 
property' to be donated shall equal or exceed 
the acreage of riparian buffer required to be 
mitigated under the mitigation responsibility 
determined pursuant to item (3). 

(E) The property shall not require excessive 
measures for successful restoration, such as 
removal of structures or infi-astructure. 

(F) Restoration of the property shall be capable of 
fully offsetting the adverse impacts of the 
requested use; 

(G) The property shall be suitable to be 
successfully restored, based on existing 
hydrology, soils, and vegetation; 

(H) The estimated cost of restoring and maintaining 

the property shall not exceed the value of the 

property minus site identification and land 

acquisition costs. 

(I) The property shall not contain cultural or 

historic resources. 
(J) The property shall not contain any hazardous 

substance or solid waste. 
(K) The property shall not contain structures or 
materials that present health or safety problems 
to the general public. If wells, septic, water or 
sewer connections exist, they shall be filled, 
remediated or closed at owner's expense in 
accordance with state and local health and 
safety regulations. 
(L) The property shall have the potential to remove 
nitrogen, improve water quality and enhance 
natural resources after restoration. The 
Division shall consider whether the property is 
adjacent to or includes: 
(i) a Department-approved restoration or 

preservation project or public lands; 
(ii) a sensitive natural resource, as identified 
in the Basinwide Wetland and Riparian 
Restoration Plan; 
(iii) known occurrences of rare species as 
identified by the North Carolina Natural 
Heritage Program in the "Natural 
Heritage Program List of Rare Animal 
Species of North Carolina" or the 
"Natural Heritage Program List of the 
Rare Plant Species of North Carolina"; 
(iv) Significant Natural Heritage Area as 
identified by the North Carolina Natural 
Heritage Program in the "North Carolina 
Natural Heritage Program Biennial 
Protection Plan, List of Significant 
Natural Heritage Areas." Copies of 
these documents may be obtained from 
the Department of Environment and 
Natural Resources, Division of Parks 
and Recreation, Natural Heritage 
Program, RO. Box 27687, Raleigh, 
North Carolina 27611; 



(v) federally or state-listed sensitive, 
endangered, or threatened species, or 
their critical habitat; 
(vi) non-supporting, partially supporting, or 
support-threatened waters as designated 
by the Division pursuant to 40 CFR 
131.10(a) through (g). This material is 
available at the Department of 
Environment and Natural Resources, 
Division of Water Quality, Water 
Quality Section, 512 North Salisbury 
Street, Raleigh, North Carolina; 
(M) The property and adjacent properties shall not 
have prior, current, and known future land use 
that would inhibit the function of the 
restoration effort. 
(N) The property shall not have any encumbrances 
or conditions on the transfer of the property 
interests. 
(4) At the expense of the applicant or donor, the 
following information shall be submitted to the 
Division with any proposal for donations or 
dedications of interest in real property : 

(A) Documentation that the property meets the 
requirements laid out in Sub-Item (8)(c); 

(B) US Geologic Survey 1:24,000 (7.5 minute) 
scale topographic map, county tax map, USD A 
Natural Resource Conservation Service County 
Soil Survey Map, and county road map 
showing the location of the property to be 
donated along with information on existing site 
conditions, vegetation types, presence of 
existing structures and easements; 

(C) A current property survey performed in 
accordance with the procedures of the North 
Carolina Department of Administration, State 
Property Office as identified by the State 
Board of Registration for Professional 
Engineers and Land Surveyors in "Standards of 
Practice for Land Surveying in North 
Carolina." Copies may be obtained from the 
North Carolina State Board of Registration for 
Professional Engineers and Land Surveyors, 
3620 Six Forks Road, Suite 300, Raleigh, 
North Carolina 27609; 

(D) A current appraisal of the value of the property 
performed in accordance with the procedures 
of the North Carolina Department of 
Administration, State Property Office as 
identified by the Appraisal Board in the 
"Uniform Standards of Professional North 
Carolina Appraisal Practice." Copies may be 
obtained fi-om the Appraisal Foundation, 
Publications Department, PO Box 96734, 
Washington, D.C. 20090-6734; and 
A title certificate. 

BUFFER RESTORATION OR 
Persons who choose to meet their 



(E) 
(i) PARIAN 

ENHANCEMENT 



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RULE-MAKING PROCEEDINGS 



mitigation requirement through riparian buffer restoration or 
enhancement shall meet the following requirements: 

( 1 ) The applicant may restore or enhance a riparian buffer 
that is not protected under the State's riparian buffer 
protection program if: 

(A) The area of riparian buffer restoration is equal 
to the required area of mitigation determined 
pursuant to Item (3); or 

(B) The area of riparian buffer enhancement is 
three times larger than the required area of 
mitigation determined pursuant to Item ( ■ ). 

(2) The location of the riparian buffer restoration or 
enhancement shall comply with the requirements in 
Item (4). 

(3) The riparian buffer restoration or enhancement site 
shall have a minimum width of 50 feet as measured 
horizontally on a line perpendicular to the surface 
water. 

(4) The applicant shall first receive an Authorization 
Certificate for the proposed use according to the 
requirements of ISA NCAC 2B .0259. After 
receiving this determination, the applicant shall 
submit a restoration or enhancement plan for approval 
by the Division. TTie restoration or enhancement plan 
shall contain the following. 

(A) A map of the proposed restoration or 
enhancement site 

(B) A vegetation plan. The vegetation plan shall 
include a minimum of at least two native 
hardwood tree species planted at a density 
sufficient to provide 320 trees per acre at 
maturity. 

(C) A grading plan. The site shall be graded in a 
manner to ensure diffuse flow through the 
riparian buffer. 

(D) A fertilizing plan. 

(E) A schedule for implementation. 

(5) Within one year after the Division has approved the 
restoration or enhancement plan, the applicant shall 
present proof to the Division that the riparian buffer 
has been restored or enhanced. If proof is not 
presented within this timeframe, then the person shall 
be in violation of the State's or the delegated local 
authority's riparian buffer protection program. 

(6) The mitigation area shall be placed under a perpetual 
conservation easement whose terms are acceptable to 
the Division. 

(7) The applicant shall submit annual reports for a period 
of five years after the restoration or enhancement 
showing that the trees planted have survived and that 
diffuse flow through the riparian buffer has been 
maintained. The applicant shall be responsible for 
replacing trees that do not survive and for restoring 
diffuse flow if needed during that five-year period. 

.0261 TAR-PAMLICO RIVER BASIIN NUTRIENT 
SENSITIVE WATERS MANAGEMENT 
STRATEGY: DELEGATION OF AUTHORITY 



FOR THE PROTECTION AND 

MAINTENANCE OF RIPARIAN BUFFERS 

(a) PURPOSE. This Rule sets out the requirements for 
delegation of the responsibility for implementing and enforcing 
the state's riparian buffer protection program to local 
governments. 

^ (b) PROCEDURES FOR GRANTING AND RESCINDING 
DELEGATION. The Commission shall grant and rescind local 
government delegation of the Tar-Pamlico River Basin Riparian 
Buffer Protection requirements according to the following 
procedures. 

(1) Local governments within the Tar-Pamlico River 
Basin may submit a written request to the 
Commission for authority to implement and enforce 
the State's riparian buffer protection requirements 
within their jurisdiction. The written request shall be 
accompanied by information which shows: 

(A) The local government has land use jurisdiction 
for the riparian buffer demonstrated by 
delineating the local land use jurisdictional 
boundary on USGS 1 :24,000 topographical 
map(s) or other appropriate scale map(s); 

(B) The local government has the administrative 
organization, staff, legal authority, financial 
and other resources necessary to implement 
and enforce the State's riparian buffer 
protection requirements based on its size and 
projected amount of development; 

(C) The local government has adopted ordinances, 
resolutions, or regulations necessary to 
establish and maintain the State's riparian 
buffer protection requirements; and 

(D) The local government has provided a plan to 
address violations with appropriate remedies 
and actions. 

(2) Within 90 days after the Commission has received the 
request for delegation, the Commission shall notify 
the local government whether it has been approved, 
approved with modifications, or denied. 

(3) The Commission, upon determination that a delegated 
local authoritv' is failing to implement or adequately 
enforce the state's riparian buffer protection 
requirements, shall notify the delegated local authority 
in writing of the local program's inadequacies. If the 
delegated local authoritv' has not corrected the 
deficiencies within 90 days of receipt of the written 
notification, then the Commission shall rescind the 
delegation of authorit\' to the local government and 
shall implement and enforce the State's riparian buffer 
protection requirements. 

(4) The Commission may delegate its duties and powers 
for granting and rescinding local government 
delegation of the State's riparian buffer protection 
requirements, in whole or in part, to the Director. 

(c) APPOINTMENT OF A RIPARIAN BUFFER 
PROTECTION ADMINISTRATOR. Upon receiving 
delegation, local governments shall appoint a Riparian Buffer 
Protection Administrator who shall coordinate the 



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implementation and enforcement of the program. The 
Administrator shall attend an initial training session by the 
Division and subsequent annual training sessions. The 
Administrator shall ensure that local government staff working 
directly with the program receive training to understand, 
implement and enforce the program. 

(d) PROCEDURES FOr" USES WITHIN RIPARIAN 
BUFFERS THAT ARE ALLOWABLE AND ALLOWABLE 
WITH MITIGATION. Upon receiving delegation, local 
authorities shall be responsible for reviewing proposed uses 
within the riparian buffer and issuing approvals if the uses meet 
the State's riparian buffer protection requirements. Delegated 
local authorities shall issue an Authorization Certificate for uses 
if the proposed use meets the State's riparian buffer protection 
requirements, or provides for appropriate mitigated provisions 
to the State's riparian buffer protection requirements. The 
Division shall have the authority to challenge a decision made by 
a delegated local authority for a period of 30 days after the 
Authorization Certificate is issued. If the Division does not 
challenge an Authorization Certificate within 30 days of 
issuance, then the delegated local authority's decision will stand. 

(e) VARIANCES. After receiving delegation, local 
governments shall be responsible for reviewing variance 
requests, providing approvals for minor variance requests and 
making recommendations to the Commission for major variance 
requests pursuant to the State's riparian buffer protection 
program. 

(0 LIMITS OF DELEGATED LOCAL AUTHORITY. The 



Commission shall have jurisdiction to the exclusion of local 
governments to implement the State's riparian buffer protection 
requirements for the following types of activities: 



(1) 
(2) 

(3) 

(4) 



Activities conducted under the authority of the State; 

Activities conducted under the authority of the United 

States; 

Activities conducted under the authority of multiple 

jurisdictions; 

Activities conducted under the authority of local units 

of government. 
(g) RECORD-KEEPING REQUIREMENTS. Delegated 
local authorities are required to maintain on-site records for a 
minimum of 5 years. Delegated local authorities must furnish a 
copy of these records to the Director within 30 days of receipt of 
a written request for the records. The Division will inspect local 
riparian buffer protection programs to ensure that the programs 
are being adequately implemented and enforced. Each delegated 
local authority's records shall include the following: 

(1) A copy of variance requests; 

(2) The variance request's finding of fact; 
The result of the variance proceedings; 
A record of complaints and action taken as a result of 
the complaint; 

Records for stream origin calls and stream ratings; 
and 

Copies of request for authorization, records approving 
authorization and Authorization Certificates. 



(3) 
(4) 

(5) 

(6) 



ATMOSPHERIC EMISSIONS 



MAJOR ISSUES 
DISCUSSED 



TECHNICAL 
DETERMINATIONS 



Meetings were fairly well attended, averaging 1 3 people per meeting; total representation 
included four industry groups, several fanners, five state/federal agencies, several local 
agriculture offices, two environmental interests, an affected landowner, and academia. 

The team focused on ammonia emissions from animal operations. It did not address the 
other major input to atmospheric nitrogen, nitrogen oxide emissions from combustion 
sources, because federal regulations and the Division of Air Quality have traditionally 
handled that area. The team evaluated the following issues: 

• Preliminary estimates of ammonia emissions and deposition. 

• The status of the science of estimating ammonia emissions, fransport, fransformation, 
and deposition. 

• TTie status of ammonia emissions control technology. 

• The feasibility of developing Rules for control of ammonia emissions from confined 
animal operations. 

The Issue of Ammonia Emissions 

The study of ammonia emissions and fate in North Carolina is currently in early stages. 
Estimates of ammonia emissions and deposition are not yet available for the basin, 
however, the Division of Air Quality (DAQ) has made preliminary estimates of 
emissions for the entire state. DAQ has estimated that ammonia emissions comprise 
about 42% of all nitrogen emissions in the state; nitrogen oxides from combustion 
sources comprise the other 58%. Of the state's ammonia emissions, animal operations 
comprise about 98.3%. The other 1 .7% comes from point source gas emissions. DAQ 
currently lacks values for two other minor sources of ammonia gas emissions, wastewater 
treatment plants and human breathing. DAQ believes that these sources are very small, 
but it has only roughly characterized them to date. Estimates of ammonia emissions from 
animal operations relied on European data developed by Dutch researcher Battye et. al. 



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RULE-MAKING PROCEEDINGS 



(1994). which are the best data currentl\ available. DAQ staff adjusted these factors for 
the different animal numbers, animal husbandn,, and climatic conditions in North 
Carolina. 

The Division of Water Quality staff has made preliminary estimates of atmospheric 
nitrogen deposition based on literature data. DWQ staff estimates that direct 
atmospheric deposition of nitrogen to open water in the Tar-Pamlico basin may comprise 
up to 42° of the controllable nonpoint source nitrogen load to the entire basin, including 
the estuary. 

Many questions on ammonia emissions, deposition, and fate in the U.S. have not been 
adequateK answered to allow well-informed management decisions. Researchers in 
North Carolina expect to have preliminary insights on some questions in the near future. 
However, long-term research will be needed to adequately answer most of them. 
Research in this countn, has only begun to measure emissions from animal operations, 
and has not yet obtained measurements from some types of operations. It has not 
confinned the relative magnitudes of different sources on a farm, such as houses, 
lagoons, and sprayflelds. and has not begun to determine the relative magnitudes of the 
different types of animal operations. Research has not yet established the geographic 
area that contributes ammonia to the Tar-Pamlico basin. It has only begun to understand 
the transport and transformation of ammonia compounds, and to quantify the behavior of 
each. Research has only begun in this countn, on the impacts of increased nitrogen 
deposition on terrestrial ecosystems, and resulting changes to nitrogen loading to 
streams. The fate of ammonia that deposits on managed lands is not yet known. 
Technologies for measuring atmospheric ammonia emissions and deposition are similarly 
in early stages of development. Current methods are cumbersome, and deposition 
instruments as yet measure only certain components of ammonia deposition. 

Progress in these areas will allow agencies to better understand the importance and 
urgency of the issue, to set geographic boundaries for regulation, to develop efficient, 
prioritized management strategies that are most easily applied and that are least 
burdensome. 

While much about ammonia remains unknown, based on the information available to 
date, ammonia emissions from confined animal operations should be considered a 
significant issue, particularly in coastal Nutrient Sensitive Waters. Unlike many other air 
pollutants, all ammonia that is emitted returns to the land or water either as ammonia gas 
or as a particulate. Ammonia that deposits on water is immediately available for 
biological uptake. Ammonia that deposits on impervious surfaces is carried to receiving 
waters with rainfall. From 1991 to 1997, hog production in eastern North Carolina more 
than doubled, to almost 9 million animals. During the same period, broiler production 
increased 55%, and cattle production increased 34%. A significant portion of the 
nitrogen in these animals" waste is released as ammonia gas into the atmosphere. None 
of the regulations currently in place on animal operations in North Carolina require 
control of ammonia emissions. 

Control of Ammonia Emissions 

To date there has been ver\' little research in North Carolina on technologies that are 
geared specifically to minimizing the impacts of ammonia emissions from animal 
operations on the environment. Most ammonia control research has been driven by 
human and animal health concerns within confinement houses. Current research that 
focuses on minimizing odors from animal operations has some potential application to 
ammonia. 

Three major ammonia source areas can be identified on existing animal operations - 
confinement houses, waste storage and treatment areas such as lagoons, and waste 
application lands. Scientists at North Carolina State University have identified a number 
of control technologies that can be applied in each of these areas for odor control, and 



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RULE-MAKING PROCEEDINGS 



DECISIONS 
REACHED 



ACTIONS TAKEN 



ISSUES ON WHICH 
CONSENSUS WAS 
NOT REACHED 



many of these practices could be applied for ammonia control also. Little work has been 
done to develop many of these systems for use in production. 

Economic Considerations of Controlling Ammonia Emissions 

Proposals to control ammonia emissions from existing animal waste systems raise an 
important issue. Practices that retain ammonia in animal waste leave greater amounts of 
nitrogen to be disposed of in some other manner. Currently, animal operations are 
designed assuming the loss of a portion of waste nitrogen to the atmosphere. As 
ammonia-retaining BMPs are applied to existing animal waste management systems, 
operators will need significantly greater acreage for waste application, which entails 
additional expense. Alternative waste management systems can be used that convert 
ammonia to an inert gas, but these technologies also entail greater expense. 

Livestock farmers operate in a very competitive market. Profit margins are small on 
average and highly variable through time. Producers in competitive markets have 
virtually no control over the prices they receive for their products. They seek to maximize 
profits by minimizing costs through increased efficiency and reduced waste. Costs of 
retrofitting existing farms differ fi-om costs of installing systems on new farms in that 
producers must still amortize investments in existing manure treatment systems as well as 
pay the full costs of installing and operating the retrofits. 

• Funding support is needed for research and demonstration of technologies for 
controlling ammonia emissions from animal operations to the environment. 

• The state agriculture cost share program would need new statutory authority to fund 
ammonia BMPs. 

• If the ACSP were given statutory authority to fund ammonia BMPs, it would need 
additional funding to support significant spending on them. 

• To implement ammonia BMPs, the economic issues faced by producers are significant; 
it will be important for the state to develop funding sources, such as expanding the 
ACSP, especially if such BMPs will be required on existing operations. 

• There are no regulatory examples to draw from in the United States; no other 
jurisdictions in the country are known that have developed regulations to control 
animal ammonia emissions to the environment. 

• Federal regulation of ammonia may occur within the next decade. The USEPA is 
currently considering standards for fine particulate atmospheric pollutants, and may 
enact regulations within the next 5 to 10 years that would encompass particulate 
ammonia emissions. 

• The team recommends that the EMC appoint an Ammonia Emissions Technical 
Advison,' Committee as described below. 

• The team recommends that the EMC forward a resolution to the General Assembly 
requesting funding for continued research on ammonia emissions and fate, and on 
expanded research and development of applied ammonia control technology as 
described below. 

Funding provided by the General Assembly in 1996 for atmospheric ammonia research is 
largely exhausted, and DAQ's historical funding for such research was recently ended. 
In December 1998, team members Dr. Viney Aneja (NCSU-MEAS), Dr. Ron Sheffield 
(NCSU-ARS), and Dr. Bill Cure (DAQ) submitted research funding proposals to DENR 
for inclusion in the departmental expansion budget. They requested funding to continue 
collecting data on ammonia emissions, ambient levels, and deposition, to continue 
modeling these data, and to develop on-farm demonstrations of BMPs to control 
emissions from different sources. 

Most of the team felt that it was premature to propose Rules without better knowledge of 
atmospheric ammonia and of ammonia control technology. The team did not reach 
consensus on this issue. Several members felt that the magnitude of the problem as 
estimated with currently available data suggests the need to take steps now. The team did 
agree that the need for Rules should be periodically reexamined, and linked to the annual 



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RULE-MAKING PROCEEDINGS 



STEERING 

COMIVIITTEE 

COMMENTS 



NPS status report to the EMC. 

The steering committee had the following suggestions to the team. The team's responses 
are provided below. 

• The EMC would like to see Rule recommendations from the team. A similar message 
appears to be coming from EPA in its Neuse TMDL negotiations. 

• The team should consider some steps or incentives to foster implementation. 

• The team should consider the lagoon phase-out committee's recommendations. 

• A timetable is lacking. 

A participant also commented that the river basin is likely not the most appropriate level 
at which to control ammonia emissions. 



AMMONIA EMISSIONS TECHNICAL ADVISORY 
COMMITTEE 

The team recommends that the EMC appoint an advisory 
committee, to be referred to as the Ammonia Emissions 
Technical Advisory Committee, to evaluate issues related to 
ammonia emissions. This committee should monitor advances 
in scientific understanding related to ammonia emissions from 
animal operations, and should periodically examine the need for 
Rulemaking to address this source with respect to nutrient 
loading of water resources. The committee should report its 
findings to the EMC on an annual basis, through the annual Tar- 
Pamlico Basin NPS status report or independently. The annual 
report should describe, at minimum, the state of scientific 
understanding of emissions, transpoil, fransformation, 
deposition, and loading from animal operations, the state of 
development of control technologies, the implications for water 
quality, and the need for Rules or other management action. If 
possible, the report should also comment on the geographic 
scope of such Rules and their nature. The committee should 
include, at minimum, representatives from DWQ, NCSU, DAQ. 
one agricultural interest, and one environmental interest. 

RESPONSES TO THE STEERING COMMITTEE'S 
CONCERNS 

The atmospheric emissions team chose not to meet in the brief 
remaining time to address the issues raised by the Steering 
Committee. In response to the comments, DAQ staff reiterated 
concerns they expressed in team meetings. They emphasized 
that all of their emissions measurements have been confined to 
one farm, that they have no data from different production 
settings and systems, that they lack a year-round characterization 
of farm sources and relative strengths, and that they have not 
begun to estimate relative effectiveness of different BMPs. 
They feel that Rules or a timetable for them would be premature, 
since they should depend on funding for more data collection. 
On enabling cost share, DAQ staff pointed out that BMPs must 
pass some effectiveness review before the SWCC approves them 
for cost share, and that such information does not yet exist. In 
addition, BMP recommendations should be well considered to 
avoid inter-media transfer of the problem. 

The team requested that the EMC forward the following 
resolution to the General Assembly: 



Resolution of the North Carolina Environmental 

Management Commission Requesting the North Carolina 

General Assembly to Appropriate Funds for Research and 

Demonstration Activities to 

Quantify and Control Atmospheric Emissions of 

Ammonia from Conflned Animal Operations 

Whereas, the number of commercially reared animals in eastern 
North Carolina has grown greatly in the last 10 years; and 

Whereas, the Albemarle-Pamlico estuarine system has been 
recognized as nutrient sensitive waters by the North Carolina 
Environmental Management Commission; and 

Whereas, best available data based on European studies indicates 
that atmospheric emissions of ammonia from confined animal 
operations in eastern North Carolina appear to represent a 
significant input of nitrogen to coastal waters; and 

Whereas, funds appropriated by the North Carolina General 
Assembly in 1996, have supported initial research toward 
understanding ammonia emissions and fate in North Carolina, 
and 

Whereas, very little research and demonstration has been 
performed on technologies to control the effects of ammonia 
from animal operations on the environment; and 

Whereas, additional fijnding is needed to continue basic science 
research, to develop control technologies, and to enable 
producers to implement controls. 

Therefore, it is hereby resolved that the North Carolina 
Environmental Management Commission requests that the North 
Carolina General Assembly establish new. recurring, non- 
reverting funding to support research on the basic science of 
ammonia emissions and fate, and research and demonstration on 
technologies to control ammonia emissions from animal 
operations into the environment. The EMC requests that this 
funding be directed to the NC Division of Air Qualit), which 
can distribute funds on a competitive basis. Basic science 
research would include data collection, trend analvsis. and 
modeling of ammonia emissions from animal operations, 
transport, transformation, deposition, effects on terrestrial 
communities, and loading to receiving waters. Atmospheric 
modeling being conducted for the Neuse basin should be 



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RULE-MAKING PROCEEDINGS 



expanded to the Tar-Pamlico and other coastal basins. Research 
and demonstration on control technologies would include 
adaptation of existing technologies and development of new 
technologies for use in the commercial animal production 
environment. To the greatest extent possible, control research 
would emphasize the following: systems approaches that address 
all farm sources; cost-effectiveness; practicality, and ease of 
implementation, operation, and maintenance. 



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CHAPTER 10 - WILDLIFE RESOURCES 
AND WATER SAFETY 

SUBCHAPTER lOB - HUNTING AND TRAPPING 

A Totice of Rule-making Proceedings is hereby given by the 

J. V North Carolina Wildlife Resources Commission in 
accordance with G.S. 150B-2I .2. The agency shall subsequently 
publish in the Register the text of the rule(s) it proposes to adopt 
as a result of this notice of rule-making proceedings and any 
comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC lOB .0403. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 113-134: II3-2''3; 113- 
2~6.1: 113-291.4 

Statement of the Subject Matter: Set/amend application for 
tags. 

Reason for Proposed Action: To amend the application for 
fox tags to conform with changes in the fox rule. The Wildlife 
Resources Commission may adopt this Rule as a temporary rule 
pursuant to S.L. 1 997-0403 following this abbreviated notice. 

Comment Procedures: The record will be open for receipt of 
written comments and must be delivered or mailed to the North 
Carolina Wildlife Resources Commission, 512 N. Salisbury 
Street. Raleigh. NC 27604-1188. 



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SUBCHAPTER lOF - MOTORBOATS AND 
WATER SAFETY 

^Totice of Rule-making Proceedings is hereby given by the 
J. V North Carolina Wildlife Resources Commission in 
accordance with G.S. 150B-21.2. The agency shall subsequently 
publish in the Register the text of the rule(s) it proposes to adopt 
as a result of this notice of rule-making proceedings arid any 
comments received on this notice. 



course of the rule-making process. 

Authority for the rule-making: G.S. 75A-3: 75A-15 

Statement of the Subject Matter: No wake zone 

Reason for Proposed Action: The McDowell County Board 
of Commissioners initiated the no-wake zone pursuant to G.S. 
75A-15 to protect public safety in the area by restricting vessel 
speed. The Wildlife Resources Commission may adopt this Rule 
as a tetnporaiy rule pursuant to G.S. 1 50B-2 1.1 (a 1 ) following 
this abbreviated notice. 

Comment Procedures: The record will be open for receipt of 
written comments and must be delivered or mailed to the North 
Carolina Wildlife Resources Commission. 512 N. Salisbwy 
Street. Raleigh. NC 2 7604- 1188. 



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CHAPTER 18 - ENVIRONMENTAL HEALTH 

^KTotice of Rule-making Proceedings is hereby given by the 

1 V North Carolina W 'ater Treatment Facilit}' Operators 
Certification Board in accordance with G.S. 150B-21.2. The 
agency shall subsequently publish in the Register the text of the 
rule(s) it proposes to adopt as a result of this notice of rule- 
making proceedings and any comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC 18D.0201. .0203. .0205-.0206. .0304. .030'^-.0309. 
. 0403. .0701. Other rules may be proposed in the course of the 
rule-making process. 

Authority for the rule-making: G.S. 90A-20 through 90A-32 



Statement of the Subject Matter: 

Treatment Facility Operators 



Rules governing Water 



Reason for Proposed Action: The Board plans to modify' and 
establish regulations to meet the United States Environmental 
Protection Agency guidelines for operator certification. Twenty 
percent of a state's drinking water state revolving fund allotment 
will be withheld if the state is not implementing an operator 
certification program that meets the federal guidelines. 

Comment Procedures: Comments may be submitted to John 
McFayden. DENRPublic Water Supply Branch, 2728 Capital 
Blvd.' Raleigh. NC 27604. 



Citation to Existing Rules Affected by this Rule-Making: 

15.4 NCAC lOF .0339. Other rules may be proposed in the 



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NORTH CAROLINA REGISTER 



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1928 



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i^r^r:^.,^ ■ t.t^^sjjbm 



PROPOSED RULES 



This Section contaim the text uj pivposeJ rules. At least 6U Jays prior to the piihlication oj text, the agency published a 
Notice of Rule-making Proceedings. The agency must accept comments on the proposed rule for at least 30 days from the 
publication date, or until the public hearing, or a later date if specified in the notice by the agency. The required comment 
period is 60 days for a rule that has a substantial economic impact of at least five million dollars ($5,000,000). Statutoiy 
reference: G.S. 15(18-21.2. 



♦ 



TITLE 15A - DEPARTMENT OF 
ENVIRONMENT AND NATURAL RESOURCES 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the DENR - Environmental Management Commission 
intends to atnend rule cited as 15A NCAC 2B . 0306. Notice of 
Rule-making Proceedings was published in the Register on April 
1. 1999. Note: Text in bold was noticed in 13:19 of the NC 
Register 

Proposed Effective Date: August 1. 2000 

A Public Hearing will be conducted at 6:00 p.m. on July 13. 
1999 at the Kings Mountain City Hall, 101 West Gold Street, 
Kings Mountain. NC. 

Reason for Proposed Action: The Environmental Management 
Commission is proposing to reclassify Lake Montonia in 
Cleveland County (Broad River Basin) to include the High 
Quality Waters (HQW) supplemental classification. The Lake 
Montonia Board has submitted a request for the reclassification 
of Lake .Montonia to include the High Quality Haters 
designation. The criteria for designation to High Quality 
Waters, as defined in 15A NCAC 2B .0201. includes those 
waters which are rated as excellent based on biological and 
physical/chemical characteristics through Division monitoring 
or special studies, native and special native trout waters 
designated by the Wildlife Resources Commission, primary 
nursery areas designated by the Marine Fisheries Commission 
and other functional nursery areas designated by the Wildlife 
Resources Comtnission. critical habitat areas designated by the 
Wildlife Resources Commission or the Department of 
Agriculture, all water supply watersheds which are either 
classified as WS-1 or WS-Il or those for which a fortnal petition 
for reclassification as WS-1 or WS-Il has has been received from 
the appropriate local government arid accepted by the Division 
of Water Quality, and all Class SA waters. Water quality studies 
show that Lake Montonia qualifies for HQW designation. Lake 
Montonia and its tributaries are proposed for reclassification 
from Class B to Class B HQW. 

New and expanding wastewater dischargers to High Quality 
Waters have additional treatment requirements. There are 
currently no dischargers to Lake Montonia or its tributaries. 
Projects which require a Sedimentation and Erosion Control 
Plan and which drain to and are within one mile ofHQWs will 
have more stringent land use development criteria as defined in 
ISA NCAC 2H . 1006. Under a low density option, development 
would be permitted at one dwelling unit per acre, or 12% built 
upon area, and thirt}- foot stream bufffers would be required. 
The HQW high density- option, which requires the use of 



stormwater controls, does not specif' an upper limit on 
development density, nor does it require the use of stream 
buffers. 

Comment Procedures: The purpose of this announcement is 
to encourage those interested in this proposal to provide 
cotnments. You rhay either attend the public hearing and make 
relevant verbal cotnments or submit written comments, data or 
other relevant information by August 12, 1999. The Hearing 
Ojficer may limit the length of time that you may speak at the 
public hearing, if necessary: so that all those who wish to speak 
may ha\-e an opportunity to do so. We encourage you to submit 
written comments as well. The EMC is very interested in all 
comments pertaining to the proposed reclassification It is very 
important that all interested and potentially affected persons or 
parties make their views known to the EMC whether in favor of 
or opposed to any and all provisions of the proposed 
reclassification. The EMC may not adopt a rule that differs 
substantially from the text of the proposed ride published in the 
North Carolina Register unless the EMC publishes the text of 
the proposed different rule and accepts comments on the new 
text (see 150B-2 1.2(g)). .411 interested and potentially affected 
persons are strongly encouraged to read the entire 
announcement and supporting information, and make 
appopriate comments on the proposal. W ritten comments may 
be submitted to: Liz Kovasckitz. DEN Rj Division of Water 
Quality. Planning Branch. P.O. Box 29535. Raleigh. NC 27626- 
0535. (919) 733-5083. extension 572. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do not 
have a substantial economic impact of at least five million 
dollars (S5.000.000) in a 12-month period 

CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 

SUBCHAPTER 2B - SURFACE WATER AND 
WETLAND STANDARDS 

SECTION .0300 - ASSIGNMENT OF STREAM 
CLASSIFICATIONS 

.0306 BROAD RIVER BASIN 

(a) The schedule may be inspected at the following places: 
(1) Clerk of Court: 

Buncombe Counts 
Cleveland County 
Gaston County 
Henderson County 
Lincoln County 
McDowell Count) 



1929 



NORTH CAROLINA REGISTER 



June 1, 1999 



13:23 



PROPOSED RULES 



Polk County 
Rutherford County- 
(2) North Carolina Department of Environment and 
Natural Resources: 

(A) Mooresville Regional Office 
919 North Main Street 
Mooresville. North Carolina 

(B) Asheville Regional Office 
Interchange Building 

59 Woodfin Place 
Asheville, North Carolina. 

(b) Unnamed Streams. Such streams entering South Carolina 
are classified "C." 

(c) The Broad River Basin Schedule of Classifications and 
Water Quality Standards was amended effective: 

(1) March 1, 1977; 

(2) February 12, 1979; 

(3) August 12. 1979; 

(4) April 1, 1983; 

(5) February 1, 1986; 

(6) August 3, 1992; 

(7) September I, 1994; 

(8) August 1. 1998; 

(9) August 1,2000. 

(d) The Schedule of Classifications and Water Quality 
Standards for the Broad River Basin was amended effective 
August 3, 1992 with the reclassification of all water supply 
waters (waters with a primary classification of WS-I, WS-II or 
WS-lll). These waters were reclassified to WS-1, WS-ll, WS- 
II I, WS-IV or WS-V as defined in the revised water supply 
protection rules, (15A NCAC 2B .0100, .0200 and .0300) which 
became effective on August 3. 1992. In some cases, streams 
with primary classifications other than WS were reclassified to 
a WS classification due to their proximity and linkage to water 
supply waters. In other cases, waters were reclassified from a 
WS classification to an alternate appropriate primary 
classification after being identified as downstream of a water 
supply intake or identified as not being used for water supply 
purposes. 

(e) The Schedule of Classifications and Water Quality 
Standards for the Broad River Basin was amended effective 
September 1, 1994 with the reclassification of the Second Broad 
River [Index No. 9-41 -(0.5)] from its source to Roberson Creek 
including associated tributaries was reclassified from Class WS- 
V to Classes WS-V. WS-IV and WS-IV CA. 

(f) The Schedule of Classifications and Water Quality 
Standards for the Broad River Basin was amended effective 
August 1, 1998 with the revision to the primars classification for 
portions of the Broad River [Index No. 9-(23.5)] from Class 
WS-IV to Class C and Second Broad River [Index Nos. 9-41- 
(10.5) and 9-4 1-( 14.5)] and First Broad River [Index No. 9-50- 
(11)] from Class WS-IV to Class WS-V. 

(g) The Schedule of Classifications and Water Quality 
Standards for the Broad River Basin was amended August 
1, 2000 with the reclassification of the Green River |Inde\ 
No. 9-29-(l)|, including all tributaries, from its source to the 
downstream side of the mouth of Rock Creek from Class C 
Tr to Class B Tr HQW, and the Green River from the 



downstream side of the mouth of Rock Creek to its mouth in 
Lake Summit at elevation 2011 from Class C Tr to Class B 
Tr. 

(h) The Schedule of Classifications and Water Quality 
Standards for the Broad River Basin was amended effective 
August _L 2000 with the reclassification ot" Lake Montonia 



[Index No. 9-54- 
B HQW. 



-( 1 )]. and all tributaries, from Class B to Class 



Authority G.S. 143-214.1: 143-215.1: 143-2 15.3(a)(1). 

•k-k-k'k-k-k-kic-k-k-fi-k-k-it-k-k-k-k'kit 

Notice is hereby giren in accordance miiIi G.S. 1508-21.2 
I hat the ENR - Environmental Management Commission 
intends to amend ride(s) cited as 15A NCAC 2B .0225 and ISA 
NCAC 2B .0310. Notice of Rule-making Proceedings was 
published in the Register on April 1. 1999. 

Proposed Effective Date: August 1. 2000 

A Public Hearing will he conducted at 6:00 p.m. on June 21. 
1999 at the Southeastern Community College. .Auditor him. 4564 
Chadbourn Highway. Whiteville. NC 

Reason for Proposed Action: The Division of Water 
Resources and the Department of Parks and Recreation Natural 
Heritage Program have requested that Lake Waccamcm- be 
reclassified to include the supplemental ORii' classification. In 
order to be classified as ORW, a water body must be of 
exceptional state or national recreational or ecological 
significance and the waters must hcn'e exceptional water quality. 
In addition, the waters must also exhibit one or more of the 
following resource values or uses: 

(1) there are outstanding fish (or commercially important 
aquatic species) habitat and fisheries: 

(2) there is an unusually high level of water-based recreation or 
the potential for such recreation: 

(3) the waters have already received some special designation 
such as a North Carolina or National Wild and Scenic River 
Native or Special Native Trout Waters, National Wildlife Refuge, 
etc. which do not provide any water quality protection: 

(4) the waters represent an important component of a state or 
national park or forest: or 

(5) the waters are of special ecological or scientific significance 
such as habitat for rare or endangered species or as areas for 
research and education. 

Water quality analyses show that Lake Waccamaw has excellent 
water quality'. Lake Waccamaw exhibits all five of the 
outstanding resource values: It is one of only A^o Bay Lakes in 
North Carolina known to support endemic fish and 
invertebrates. In the Waccamaw River drainage there are five 
fish species which currently hcn'e either federal or state 
protection: Lake Waccamaw is heavily utilized for a variet}' of 
water-based recreation, including fishing, boating and 



13:23 



NOR TH CAROLINA REGISTER June 1, 1 999 



1930 



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"^-'^■*"^- ■^'■*'^^ 



PROPOSED RULES 



swimming,: Lal<e Waccamaw is on the Registiy of Natural 
Heritage Areas and is considered of "National Significance" by 
the NC Natural Heritage Program: Lake lVaccama^r is owned 
by the State of North Carolina and administered by the Division 
of Parks and Recreation: and Lake Waccamaw is of national 
significance in regard to its fish and highly diverse mollusc 
fauna, including many endemic species. 

Special protection measures that apply to North Carolina ORlVs 
are set forth in 15A NCAC 2B .0225. At a minimum, no new 
wastewater discharges or expansions to existing discharges are 
permitted, and stormwater controls for most new development 
are required. In addition to applying the ORW requirements to 
Lake WaccamcTA-. it is proposed that these special protection 
measures also apply to the upstream waters which drain to Lake 
Waccamcn\' in order to protect the excellent water quality and 
outstanding resource values found in the lake. 

Elevated mercury levels have been detected in fish tissue 
throughout the Lumber River Basin, though neither a source for 
the mercury contamination, nor a clear boundary for it has been 
established. In 1993, fish consumption advisories for 
largemouth bass and bowfin were issued for Big Creek, which 
flows into Lake Waccamaw, and the Waccamaw River They did 
not apply to Lake Waccamcnw where mean mercury readings in 
largemouth bass were below the FD.4 action level. .Additional 
sampling in the Lumber River Basin found a number of 
occurrences offish having mean mercury levels approaching or 
exceeding the FDA action level and, in 1993. a fish consumption 
advisory was issued for the entire Lumber River Basin. The 
advisory recommends that the general population consume rio 
more than two meals of the fish per month and child-hearing 
women and children consume no largemouth bass or bowfin 
taken from this area. In June of 1997. a statewide consumption 
advisory on bowfin was issued. 

Lake Waccamaw provides a unique and sensitive habitat for a 
diverse community of aquatic plants and fauna, including 
several species offish and molluscs that are threatened or of 
special concern. Lake Waccamaw is a demonstrated outstanding 
resource with its excellent water quality and resource values, 
particularly its special ecological significance as critical habitat 
for the federally listed threatened Waccatncrw silverside. 

Comment Procedures: The purpose of this announcement is 
to encourage those interested in this proposal to provide 
comments. You may either attend the public hearing and make 
relevant verbal comments or submit written comments, data or 
other relevant information by July 21, 1999. The Hearing 
Officer may limit the length of time that you may speak at the 
public hearing, if necessary, so that all those who wish to speak 
may ha\-e an opportunity to do so. We encourage you to submit 
written comments as well. The EMC is very interested in all 
comments pertaining to the proposed reclassification. It is very 
important that all interested and potentially affected persons or 
parties make their vievt's known to the EMC whether in favor of 
or opposed to any and all provisions of the proposed 
reclassification. The EMC may not adopt a rule tht differs 



substantially from the text of the proposed rule published the 
North Carolina Register unless the EMC publishes the text of 
the proposed different rule and accepts comments on the new 
text (see 150B-21.2(g)). .All interested and potentially affected 
persons are strongly encouraged to read the entire 
announcement and supporting information, and make 
appropriate comments on the proposal. Written comments may 
be submitted to: Liz Kovasckitz, DENR/Division of Water 
Quality, Planning Branch, PO Box 29535, Raleigh, NC 27626- 
0535. 1919} 733-5083, extension 572. 

Fiscal Note: These Rules do not affect the expenditures or 
re\'enues of state or local government funds. These Rules do not 
have a substantial ecotwmic impact of at least five million 
dollars ($5,000,000) in a 12-month period. 



CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 

SUBCHAPTER 2B - SURFACE WATER AND 
WETLAND STANDARDS 

SECTION .0200 - CLASSIFICATIONS AND WATER 
QUALITY STANDARDS APPLICABLE 

TO SURFACE WATERS AND 
WETLANDS OF NORTH CAROLINA 

.0225 OUTSTANDING RESOURCE WATERS 

(a) General. In addition to the existing classifications, the 
Commission may classify certain unique and special surface 
waters of the state as outstanding resource waters (ORW) upon 
finding that such waters are of exceptional state or national 
recreational or ecological significance and that the waters have 
exceptional water quality while meeting the following 
conditions: 

( 1 ) there are no significant impacts from pollution with 
the water quality rated as excellent based on physical, 
chemical or biological information; 

(2) the characteristics which make these waters unique 
and special may not be protected by the assigned 
narrative and numerical water quality standards. 

(b) Outstanding Resource Values. In order to be classified as 
ORW, a water body must exhibit one or more of the following 
values or uses to demonstrate it is of exceptional state or national 
recreational or ecological significance: 

( 1 ) there are outstanding fish (or commercially important 
aquatic species) habitat and fisheries; 

(2) there is an unusually high level of water-based 
recreation or the potential for such recreation; 

(3) the waters have already received some special 
designation such as a North Carolina or National Wild 
and Scenic River. Native or Special Nati\e Trout 
Waters, National Wildlife Refuge, etc. uhich do not 
provide any water quality protection; 

(4) the waters represent an important component of a 
state or national park or forest; or 

(5) the waters are of special ecological or scientific 
significance such as habitat for rare or endangered 



I 



J 931 



NORTH CAROLINA REGISTER 



June 1, 1999 



13:23 



PROPOSED RULES 



species or as areas for research and education. 

(c) Quality Standards for ORW. 

(1) Freshwater: Water quaiit> conditions shall clearly 
maintain and protect the outstanding resource values 
of waters classified ORW. Management strategies to 
protect resource values shall be developed on a site 
specific basis during the proceedings to classify 
waters as ORW. At a minimum, no new discharges or 
expansions of existing discharges shall be permitted, 
and stormwater controls for all new development 
activities requiring an Erosion and Sedimentation 
Control Plan in accordance with rules established by 
the NC Sedimentation Control Commission or an 
appropriate local erosion and sedimentation control 
program shall be required to follow the stormwater 
provisions as specified in 15A NCAC 2H .1000. 
Specific stormwater requirements for ORW areas are 
described in 15A NCAC 2H .1007. 

(2) Saltwater: Water quality conditions shall clearly 
maintain and protect the outstanding resource values 
of waters classified ORW. Management strategies to 
protect resource values shall be developed on a 
site-specific basis during the proceedings to classify 
waters as ORW. At a minimum, new development 
shall comply with the stormwater provisions as 
specified in 15A NCAC 2H .1000. Specific 
stormwater management requirements for saltwater 
ORWs are described in I5A NCAC 2H .1007. New 
non-discharge permits shall meet reduced loading 
rates and increased buffer zones, to be determined on 
a case-by-case basis. No dredge or fill activities shall 
be allowed where significant shellfish or submerged 
aquatic vegetation bed resources occur, except for 
maintenance dredging, such as that required to 
maintain access to existing channels and facilities 
located within the designated areas or maintenance 
dredging for activities such as agriculture. A public 
hearing is mandatory for any proposed permits to 
discharge to waters classified as ORW. 

Additional actions to protect resource values shall be considered 
on a site specific basis during the proceedings to classifi, waters 
as ORW and shall be specified in Paragraph (e) of this Rule. 
These actions may include anything within the powers of the 
commission. The commission shall also consider local actions 
which have been taken to protect a water body in determining 
the appropriate state protection options. Descriptions of 
boundaries of waters classified as ORW are included in 
Paragraph (e) of this Rule and in the Schedule of Classifications 
(ISA NCAC 2B .0302 through .0317) as specified for the 
appropriate river basin and shall also be described on maps 
maintained by the Division of Environmental Management. 

(d) Petition Process. Any person may petition the 
Commission to classify a surface water of the state as an ORW. 
The petition shall identify' the exceptional resource value to be 
protected, address how the water body meets the general criteria 
in Paragraph (a) of this Rule, and the suggested actions to 
protect the resource values. The Commission may request 
additional supporting information from the petitioner. The 



Commission or its designee shall initiate public proceedings to 
classify waters as ORW or shall inform the petitioner that the 
waters do not meet the criteria for ORW with an explanation of 
the basis for this decision. The petition shall be sent to: 

Director 

DEHNR DENR/ Division of Environmental Manag e ment 

Water Oualiry 

PO. Box 29535 

Raleigh. North Carolina 27626-0535 

The envelope containing the petition shall clearly bear the 

notation: RULE-MAKING PETITION FOR ORW 

CLASSIFICATION. 

(e) Listing of Waters Classified ORW with Specific Actions. 
Waters classified as ORW with specific actions to protect 
exceptional resource values are listed as follows: 

( 1 ) Roosevelt Natural Area [White Oak River Basin, 
Index Nos. 20-36-9.5-( 1 ) and 20-36-9.5-(2)] including 
all fresh and saline waters within the property 
boundaries of the natural area shall have only new 
development which complies with the low density 
option in the stormwater rules as specified in 15A 
NCAC 2H .1005(2Ka) within 575 feet of the 
Roosevelt Natural Area (if the development site 
naturally drains to the Roosevelt Natural Area). 

(2) Chattooga River ORW Area (Little Tennessee River 
Basin and Savannah River Drainage Area): the 
following undesignated waterbodies that are tributary 
to ORW designated segments shall comply with 
Paragraph (c) of this Rule in order to protect the 
designated waters as per Rule .0203 of this Section. 
However, expansions of existing discharges to these 
segments shall be allowed if there is no increase in 
pollutant loading: 

(A) North and South Fowler Creeks, 

(B) Green and Norton Mill Creeks, 

(C) Cane Creek, 

(D) Amnions Branch, 

(E) Glade Creek, and 

(F) Associated tributaries. 

(3) Henry Fork ORW Area (Catawba River Basin): the 
following undesignated waterbodies that are tributary 
to ORW designated segments shall comply with 
Paragraph (c) of this Rule in order to protect the 
designated waters as per Rule .0203 of this Section: 

(A) Ivy Creek. 

(B) Rock Creek, and 

(C) Associated tributaries. 

(4) South Fork New and New Rivers ORW Area [New 
River Basin (Index Nos. 10-1-33.5 and 10)]: the 
following management strategies, in addition to the 
discharge requirements specified in Subparagraph 
(c)(1) of this Rule, shall be applied to protect the 
designated ORW areas: 

(A) Stormwater controls described in Subparagraph 
(c)( I ) of this Rule shall apply within one mile 
and draining to the designated ORW areas; 

(B) New or expanded NPDES permitted 
wastewater discharges located upstream of the 



13:23 



NORTH CAROLINA REGISTER June 1, 1999 



1932 



W9mrmmmmmmammvmma\iiiasaa 



"^— "'*^n I 'iTTrinriT— 



PROPOSED RULES 



designated ORW shall be permitted such that 

the following water quality standards are 

maintained in the ORW segment: 
(i) the total volume of treated wastewater 
for all upstream discharges combined 
shall not exceed 50 percent of the total 
instream flow in the designated ORW 
under 7QI0 conditions; 

(ii) a safety factor shall be applied to any 
chemical allocation such that the 
effluent limitation for a specific 
chemical constituent shall be the more 
stringent of either the limitation 
allocated under design conditions 
(pursuant to 15A NCAC 2B .0206) for 
the normal standard at the point of 
discharge, or the limitation allocated 
under design conditions for one-half the 
normal standard at the upstream border 
of the ORW segment; 

(iii) a safety factor shall be applied to any 
discharge of complex wastewater (those 
containing or potentially containing 
toxicants) to protect for chronic toxicity 
in the ORW segment by setting the 
whole effluent toxicity limitation at the 
higher (more stringent) percentage 
effluent determined under design 
conditions (pursuant to 15A NCAC 2B 
.0206) for either the instream effluent 
concentration at the point of discharge 
or twice the effluent concentration 
calculated as if the discharge were at the 
upstream border of the ORW segment; 
(C) New or expanded NPDES permitted 

wastewater discharges located upstream of the 

designated ORW shall comply with the 

following: 

(i) Oxygen Consuming Wastes: Effluent 
limitations shall be as follows: BOD = 5 
mg/l,andNH3-N = 2 mg/1; 

(ii) Total Suspended Solids: Discharges of 
total suspended solids (TSS) shall be 
limited to effluent concentrations of 10 
mg/1 for trout waters and to 20 mg 1 for 
all other waters; 

(iii) Emergency Requirements: Failsafe 
treatment designs shall be employed, 
including stand-by power capability for 
entire treatment works, dual train design 
for all treatment components, or 
equivalent failsafe treatment designs; 

(iv) Nutrients: Where nutrient 

overenrichment is projected to be a 
concern, appropriate effluent limitations 
shall be set for phosphorus or nitrogen, 
or both. 
(5) Old Field Creek (New River Basin): the undesignated 



I 



portion of Old Field Creek (from its source to Call 
Creek) shall compK with Paragraph (c) of this Rule in 
order to protect the designated waters as per Rule 
.0203 of this Section. 

(6) In the following designated waterbodies. no additional 
restrictions shall be placed on new or expanded 
marinas. The onK new or expanded NPDES 
permitted discharges that shall be allowed shall be 
non-domestic, non-process industrial discharges. The 
Alligator River Area (Pasquotank River Basin) 
extending from the source cf the Alligator River to 
the U.S. Highway 64 bridge including New Lake 
Fork. North West Fork Alligator River, Juniper 
Creek, Southwest Fork Alligator River, Scouts Bay, 
Gum Neck Creek, Georgia Bay, Winn Bay, Stumpy 
Creek Bay. Stumpy Creek, Swann Creek (Swann 
Creek Lake), Whipping Creek (Whipping Creek 
Lake). Grapevine Bay. Rattlesnake Bay. The Straits, 
The Frying Pan, Coopers Creek, Babbitt Bay, Goose 
Creek, Milltail Creek, Boat Bay. Sandy Ridge Gut 
(Sawyer Lake) and Second Creek, but excluding the 
Intracoastal Waterway (Pungo River-Alligator River 
Canal) and all other tributary streams and canals. 

(7) In the following designated waterbodies. the only type 
of new or expanded marina that shall be allowed shall 
be those marinas located in upland basin areas, or 
those with less than 30 slips, having no boats over 21 
feet in length and no boats with heads. The only new 
or expanded NPDES permitted discharges that shall 

be allowed shall be non-domestic, non-process m 
industrial discharges. 

(A) TTie Northeast Swanquarter Bay Area including 
all waters northeast of a line from a point at 
Lat. 35° 23' 51 " and Long. 76° 21' 02" thence 
southeast along the Swanquarter National 
Wildlife Refuge hunting closure boundary (as 
defined by the 1935 Presidential Proclamation) 
to Drum Point. 

(B) The Neuse-Southeast Pamlico Sound Area 
(Southeast Pamlico Sound Section of the 
Southeast Pamlico, Core and Back Sound 
Area); (Neuse River Basin) including all 
waters within an area defined by a line 
extending from the southern shore of Ocracoke 
Inlet northwest to the Tar-Pamlico River and 
Neuse River basin boundary, then southwest to 
Ship Point. 

(C) The Core Sound Section of the Southeast 
Pamlico, Core and Back Sound Area (White 
Oak River Basin), including all waters of Core 
Sound and its tributaries, but excluding Nelson 
Bay, Little Port Branch and Atlantic Harbor at 
its mouth, and those tributaries of .larrett Bay 
that are closed to shelltlshing. 

(D) The Western Bogue Sound Section of the ^ 
Western Bogue Sound and Bear Island Area ^ 
(White Oak River Basin) including all waters 
within an area defined b\ a line from Bosue 



1933 



NORTH CAROLINA REGISTER 



June 1, 1999 



13:23 



PROPOSED RULES 



Inlei to the mainland at SR 1117 to a line 
across Bogue Sound from the southwest side of 
Gales Creek to Rock Point, including Taylor 
Bay and the Intracoastal Waterway. 

(E) The Stump Sound Area (Cape Fear River 
Basin) including all waters of Stump Sound 
and Alligator Bay from marker Number 17 to 
the western end of Permuda Island, but 
excluding Rogers Bay, the Kings Creek 
Restricted Area and Mill Creek. 

(F) The Topsail Sound and Middle Sound Area 
(Cape Fear River Basin) including all estuarine 
waters from New Topsail Inlet to Mason Inlet, 
including the Intracoastal Waterway and Howe 
Creek, but excluding Pages Creek and Futch 
Creek. 

(8) In the following designated waterbodies, no new or 
expanded NPDES permitted discharges and only new 
or expanded marinas with less than 30 slips, having 
no boats over 21 feet in length and no boats with 
heads shall be allowed. 

(A) The Swanquarter Bay and Juniper Bay Area 
(Tar-Pamlico River Basin) including all waters 
within a line beginning at Juniper Bay Point 
and running south and then west below Great 
Island, then northwest to Shell Point and 
including Shell Bay. Swanquarter and Juniper 
Bays and their tributaries, but excluding all 
waters northeast of a line from a point at Lat. 
35° 23' 51" and Long. 76° 21' 02" thence 
southeast along the Swanquarter National 
Wildlife Refuge hunting closure boundary (as 
defined by the 1935 Presidential Proclamation) 
to Drum Point and also excluding the Blowout 
Canal. Hydeland Canal, Juniper Canal and 
Quarter Canal. 

(B) The Back Sound Section of the Southeast 
Pamlico. Core and Back Sound Area (White 
Oak River Basin) including that area of Back 
Sound extending from Core Sound west along 
Shackleford Banks, then north to the western 
most point of Middle Marshes and along the 
northwest shore of Middle Marshes (to include 
all of Middle Marshes), then west to Rush 
Point on Marker's Island, and along the 
southern shore of Marker's Island back to Core 
Sound. 

(C) The Bear Island Section of the Western Bogue 
Sound and Bear Island Area (White Oak River 
Basin) including all waters within an area 
defined by a line from the western most point 
on Bear Island to the northeast mouth of Goose 
Creek on the mainland, east to the southwest 
mouth of Queen Creek, then south to green 
marker No. 49, then northeast to the northern 
most point on Huggins Island, then southeast 
along the shoreline of Huggins Island to the 
southeastern most point of Huggins Island, 



then south to the northeastern most point on 

Dudley Island, then southwest along the 

shoreline of Dudley Island to the eastern tip of 

Bear Island. 

(D) The Masonboro Sound Area (Cape Fear River 

Basin) including all waters between the Barrier 

Islands and the mainland from Carolina Beach 

Inlet to Masonboro Inlet. 

(9) Black and South Rivers ORW Area (Cape Fear River 

Basin) [Index Nos. I8-68-(0.5), 18-68-(3.5), 

18-68-(11.5). 18-68-12-(0.5), 1 8-68- 12-(1 1.5), and 

18-68-2]: the following management strategies, in 

addition to the discharge requirements specified in 

Subparagraph (c)( 1 ) of this Rule, shall be applied to 

protect the designated ORW areas: 

( A ) Stormwater controls described in Subparagraph 
(c)( 1 ) of this Rule shall appK within one mile 
and draining to the designated ORW areas; 

(B) New or expanded NPDES permitted 
wastewater discharges located one mile 
upstream of the stream segments designated 
ORW (upstream on the designated mainstem 
and upstream into direct tributaries to the 
designated mainstem) shall comply with the 
following discharge restrictions: 

(i) Oxygen Consuming Wastes: Effluent 
limitations shall be as follows: BOD = 5 
mg/'l and NH3-N = 2 mg I; 

(ii) Total Suspended Solids: Discharges of 
total suspended solids (TSS) shall be 
limited to effluent concentrations of 20 
mg/l; 

(iii) Emergency Requirements: Failsafe 
treatment designs shall be employed, 
including stand-by power capability for 
entire treatment works, dual train design 
for all treatment components, or 
equivalent failsafe treatment designs; 

(iv) Nutrients: Where nutrient 

overenrichment is projected to be a 
concern, appropriate effluent limitations 
shall be set for phosphorus or nitrogen, 
or both, 
(v) Toxic substances: In cases where 
complex discharges (those containing or 
potentially containing toxicants) may be 
currently present in the discharge, a 
safety factor shall be applied to any 
chemical or whole effluent toxicity 
allocation. The limit for a specific 
chemical constituent shall be allocated 
at one-half of the normal standard at 
design conditions. Whole effluent 
toxicity shall be allocated to protect for 
chronic toxicity at an effluent 
concentration equal to twice that which 
is acceptable under flow design criteria 
(pursuant to I5A NCAC 2B .0206). 



13:23 



NORTH CAROLINA REGISTER June /, 1999 



1934 



VHPmmwpffHmmam 



^^"^"""^"'-^ , III JL I L-rT.TTt7r;^Itaua^g>WU^f.><..Vf.>^ ■ '-■-'^-^^T." 



PROPOSED RULES 



(10) Lake Waccamaw ORW Area (Lumber River Basin) 
[Index No. 15-2]: all undesignated waterbodies that 
are tributar\ to Lake Waccamaw shall compK with 
Paragraph (c) of thjs Rule jn order to protect the 
designated waters as per Rule .0203 of this Section. 

Authority G.S. 143-214.1. 

SECTION .0300 - ASSIGNMENT OF 
STREAM CLASSIFICATIONS 

.0310 LUMBER RIVER BASIN 

(a) The schedule may be inspected at the following places: 

(1) Clerk of Court: 
Bladen Count>' 
Brunswick County 
Columbus County 
Cumberland County 
Hoke County 
Montgomery County 
Moore County 
Richmond County 
Robeson County 
Scotland County 

(2) North Carolina Department of Environm e nt. H e alth. 
Environment and Natural Resources: 

(A) Fayetteville Regional Office 
Wachovia Building 

Suite 714 

Fayetteville, North Carolina 

(B) Wilmington Regional Office 
127 Cardinal Drive Extension 
Wilmington, North Carolina. 

(b) Unnamed Streams. Such streams entering South Carolina 
are classified "C Sw". 

(c) The Lumber River Basin Schedule of Classification and 
Water Quality Standards was amended effective: 

(1) March I, 1977; 

(2) December 13, 1979; 

(3) September 14. 1980; 

(4) April 12, 1981; 

(5) April 1.1982; 

(6) February 1. 1986; 

(7) July 1. 1990; 

(8) August I. 1990; 

(9) August 3. 1992: 

(10) September 1 , 4W6t 1996; 

(11) August 1, 2000. 

(d) The Schedule of Classifications and Water Quality 
Standards for the Lumber River Basin was amended effective 
July 1, 1990 by the reclassification of Naked Creek (Index No. 
14-2-6) fi"om source to Drowning Creek including all tributaries 
from Class WS-IU to Class WS-llI ORW. 

(e) The Schedule of Classifications and Water Quality 
Standards for the Lumber River Basin was amended effective 
August 3, 1992 with the reclassification of all water suppK 
waters (waters w ith a primary classification of WS-l. WS-ll or 
WS-Ul). These waters were reclassified to WS-l, WS-Il, WS- 



III. WS-IV or WS-V as defined in the revised water suppK 
protection rules, (15A NCAC 28 .0100, .0200 and .0300) which 
became effective on August 3, 1992. In some cases, streams 
with primary classifications other than WS were reclassified to A 
a WS classification due to their proximity and linkage to water * 
suppK waters. In other cases, waters were reclassified from a 
WS classification to an alternate appropriate primary 
classification after being identified as downstream of a water 
supply intake or identified as not being used for water suppK 
purposes. 

(f) The Schedule of Classifications and Water Quality 
Standards for the Lumber River Basin was amended effective 
September 1, 1996 by the reclassification of the Lumber River 
from 2.0 miles upstream of highway 401 to a point 0.5 mile 
upstream of Powell Branch [Index Nos. 14-(3), 14-(4), 14-(4.5), 
14-(7) and 14-(10.3)] from Classes WS-IV Sw HQW, WS-IV 
Sw HQW CA and C Sw HQW to Classes WS-IV&B Sw HQW, 
WS-IV&B Sw HQW CA and B Sw HQW. 

(g) The Schedule of Classifications and Water Quality 
Standards for the Lumber River Basin was amended effective 
August _L 2000 with the reclassification of Lake Waccamaw 
[Index No. 1 5-2] from Class B Sw to Class B Sw ORW. 

Authorm-G.S. 143-214.1: 143-215.1: 143-2 15.3(a)(1). 



■K -K -K fk 



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Notice 75 hereby given in accordance with G.S. 1508-21. 2 
tliat the Environmental Management Commission intends 
to amend rule cited as 15A NCAC 2B .0317. Notice of Rule- m 
making Proceedings was published in the Register on .April 1. 
1999. 

Proposed Effective Date: August 1. 2000 

A Public Hearing will be conducted at 6:00 p.m. on June 24. 
1999 at the CresM-ell Town Hall. 109 West Main Street (Fire 
Dept. Bldg). Creswell. NC 

Reason for Proposed Action: The Department of Parks and 
Recreation 's Natural Heritage Program requested that Lake 
Phelps be reclassified for primary recreation (Class B) and to 
include the supplemental ORW (Outstanding Resource Waters) 
classification. In order to he classified as ORW. a water body 
must be of exceptional state or national recreational or 
ecological significance and the waters must have exceptional 
water quality. In addition, the waters must also exhibit one or 
more of the follow itig resource values or uses: (I) there are 
outstanding fish (or commercially important aquatic species) 
habitat and fisheries: (2) there is an unusually high level of 
water-based recreation or the potential for such recreation: (3) 
the waters have already received some special designation such 
as a North Carolina or National Wild and Scenic River Native 
or Special Native Trout Waters. National Wildlife Refuge, etc. . 
which do not provide any water quality protection: (4) the a 
waters represent an important component of a state or national ^ 
park or forest: or (5) the waters are of special ecological or 
scientific significance such as habitat for rare or endangered 



1935 



NORTH CAROLINA REGISTER 



June 1, 1999 



13:23 



PROPOSED RULES 



species or as areas for research and education. 

Lake Phelps is a 16,600 acre elliptical Carolina Bay and is the 
second largest natural lake in the state. Water quality in Lake 
Phelps is excellent based on physical, chemical and biological 
monitoring results and the lake meets several of the outstanding 
resource values: The lake itself, as well as an old-growth stand 
of remnant bald cypress on the northern shore known as 
Pettigrew Cypress Natural Area, are registered natural areas 
with the North Carolina Division of Parks and Recreation 's 
Natural Heritage Program: The lake is an integral component 
of Pettigrew State Park and is administered by the North 
Carolina Division of Parks and Recreation. Bordering the west 
side of Lake Phelps is Pocosin Lakes National Wildlife Refuge 
which was established in 1 990: The waters and adjacent park 
contain several species of rare or globally imperiled plants and 
fish. Lake Phelps and While Lake harbor the southern-most 
localities for the leafless walermilfoil and Lake Phelps is the 
only known location for northeastern bladderwort. Both of these 
species are considered "significantly rare" in North Carolina. 
Lake Phelps provides habitat for the globally imperiled 
Waccamaw killifish. which is only found here and at Lake 
Waccamaw. N.C The lake is also a scientifically important site 
for the study of North Carolina 's historic and prehistoric 
cultural heritage: and Lake Phelps is a hecnily utilized 
recreational area. Special protection measures that apply to 
North Carolina ORWs are set forth in 15A NCAC 2B .0225. At 
a minimum, no new wastewater discharges or expansions to 
existing discharges are permitted, and stormwater controls for 
most new development are required. 

The B classification is assigned to freshwaters that are used for 
primary recreation purposes. Primary recreation is defined in 
Division rules as "swimming, skin diving, skiing, and similar 
uses involving human body contact with water where such 
activities take place in an organized or on a frequent basis. " 
Under North Carolina rules, several criteria must be met before 
waters can be classified for primaiy recreation. These are: (I) 
the area must be of sufficient size and depth to support primary 
recreation: (2 f fecal col {form concentrations must be less than 
200 colonies per 100 tnillil iters based on a geometric mean 
derived from five samples taken within a 30 day period: (3) 
there must be no sources of water pollution which could result 
in a hazard to public health in close proximity to areas where 
recreation occurs: and (4) primary recreation must take place 
in an organized or on a frequent basis. Lake Phelps is used for 
primaiy recreation activities including water skiing, swimming, 
and jet skiing. Water quality studies indicate that Lake Phelps 
meets the requirements for reclassification to B waters. 
Wastewater dischargers to Class B waters are required to 
comply with reliability standards set forth in 15.A NC.4C 2H 
.0124. Reliability standards require facilities to insure continued 
treatment of wastewater during instances of power failure. 
There are no permitted dischargers to the area proposed for 
reclassification. 

Elevated levels of mercury hcn'e been detected in fish tissue 
samples taken from Lake Phelps. Mean mercuiy levels for 



largemouth bass and bow fin collected at Lake Phelps were 1.16 
ppm (parts per million) and 1.4 ppm respectively. The FD.4 
action level for mercuiy is 1.0 ppm. Lake Phelps is unique in 
that it has a minimal drainage area, receives most of its 
hydrologic input from the atmosphere and represents a 
minimally impacted system. Atmospheric mercuiy deposition 
may therefore be a significant source for the observed mercury 
levels, although mercury is known to occur naturally in the high 
organic peat soils of North Carolina. In .June of 1996. the State 
Health Director issued a fish consumption advisoiy for bass and 
bowfln in Lake Phelps due to the elevated mercuiy levels. In 
June of 199". a statcMide consumption advisory on bowjin was 
issued due to unsafe mercuiy levels. 

Lake Phelps is an important and unique resource. Water quality- 
in Lake Phelps is considered to be excellent. In addition. Lake 
Phelps exhibits several resource values that demonstrate its 
exceptional ecological significance at both state and national 
levels. The ORW designation of Lake Phelps would provide 
recognition of this diverse and unique ecosystem. 

Comment Procedures: The purpose of this announcement is 
to encourage those interested in this proposal to provide 
comments. You may either attend the public hearing and make 
relevant verbal comments or submit written comments, data or 
other relevant information by July 24. 1999. The Hearing 
Officer may limit the length of time that you may speak at the 
public hearing, if necessary, so that all those who wish to speak 
may have an opportunity to do so. We encourage you to submit 
written comments as well. The EMC is veiy interested in all 
comments pertaining to the proposed reclassification. It is very 
important that all interested and potentially affected persons or 
parties make their views known to the EMC whether in favor of 
or opposed to any and all provisions of the proposed 
reclassification. The EMC mcy not adopt a rule that differs 
substantially from the text of the proposed rule published in the 
North Carolina Register unless the EMC publishes the text of 
the proposed different rule and accepts comments on the nev>' 
text (see 150B-21.2(g)). All interested and potentially affected 
persons are strongly encouraged to read the entire 
announcement and supporting information, and make 
appropriate comments on the proposal. Written comments may 
be submitted to: Liz Kovasckitz. DENR'Division of Water 
Quality. Planning Branch. P.O. Box 29535. Raleigh. NC 27626- 
0535. (919) 733-5083. extension 572. 

Fiscal Note: 772^5^ Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do not 
have a substantial economic impact of at least five million 
dollars (S 5. 000. 000) in a 12-month period. 

CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 

SUBCHAPTER 2B - SURFACE WATER AND 
WETLAND STANDARDS 

SECTION .0300 - ASSIGNMENT OF STREAM 



13:23 



NORTH CAROLINA REGISTER 



June y. 1999 



1936 



n hf ff m g n Tn mMfg-'HJ-gag»w«gtnw^ 



i:F,i^^.^.^^.^.'.?^-i^.^^T^ 



PROPOSED RULES 



CLASSIFICATIONS 

.0317 PASQUOTANK RIVER BASIN 

(a) Placea wh e r e th e achedulcG may be insp e ct e d: The 
schedule may be inspected at the following places: 

(1) Clerk of Court: 
Camden County 
Chowan County 
Currituck County 
Dare County 
Gates County 
Hyde County 
Pasquotank County 
Perquimans County 
Tyrrell County 
Washington County 

(2) North Carolina Department of Environment and 
Natural Resources; 

Washington Regional Office 
1424 Carolina Avenue 
Washington, North Carolina. 

(b) Unnamed Streams. All drainage canals not noted in the 
schedule are classified "C." 

(c) The Pasquotank River Basin Schedule of Classifications 
and Water Qualitv Standards was amended effective: 

(1) March'l, 1977; 

(2) May 18, 1977; 

(3) December 13, 1979; 

(4) Januar> 1. 1985; 

(5) February 1, 1986; 

(6) January 1, 1990; 

(7) August 1. 1990; 

(8) August 3, 1992; 

(9) August \,W^ 1998; 
(10) August 1, 2000. 

(d) The Schedule of Classifications and Water Quality 
Standards for the Pasquotank River Basin was amended 
effective January 1. 1990 by the reclassification of Alligator 
River [Index Nos. 30-16-(l) and 30-16-(7)] from source to U.S. 
Hwy. 64 and all tributaries except Swindells Canal, Florida 
Canal, New Lake, Fairfield Canal, Carters Canal, Dunbar Canal 
and Intracoastal Waterway (Pungo River - Alligator River 
Canal) were reclassified from C Sw and SC Sw to C Sw ORW 
and SC Sw ORW. 

(e) The Schedule of Classifications and Water Quality 
Standards for the Pasquotank River Basin was amended 
effective August 1. 1990 as follows: 

( 1 ) Croatan Sound [Index No. 30-20-( 1 )] from a point of 
land on the southern side of mouth of Peter Mashoes 
Creek on Dare County mainland following a line 
eastward to Northwest Point on Roanoke Island and 
then from Northwest Point following a line west to 
Reeds Point on Dare County mainland was 
reclassified from Class SC to Class SB. 

(2) Croatan Sound [Index No. 30-20-(l.5)] from 
Northwest Point on Roanoke Island following a line 
west to Reeds Point on Dare Countv mainland to 



William B. Umstead Memorial Bridge was 
reclassified from Class SC to Class SA. 

(0 The Schedule of Classifications and Water Quality 
Standards for the Pasquotank River Basin was amended A 
effective August 3, 1992 with the reclassification of all water " 
supply waters (waters with a primary classification of WS-I, 
WS-II or WS-I II). These waters were reclassified to WS-I, WS- 
II, WS-III. WS-IV or WS-V as defined in the revised water 
supply protection rules, ( 1 5A NCAC 2B .0 100, .0200 and .0300) 
which became effective on August 3, 1992. In some cases, 
streams with primary classifications other than WS were 
reclassified to a WS classification due to their proximity and 
linkage to water supply waters. In other cases, waters were 
reclassified from a WS classification to an alternate appropriate 
primarv classification after being identified as downstream of a 
water supply intake or identified as not being used for water 
supply purposes. 

(g) The Schedule of Classifications and Water Quality 
Standards for the Pasquotank River Basin was amended 
effective August 1, 1998 with the revision to the primary 
classification for a portion of the Pasquotank River [Index No. 
30-3-(1.7)] from Class WS-IV to Class WS-V. 

(h) The Schedule of Classifications and Water Qualitv 
Standards for the Pasquotank River Basin was amended 
effective August 1, 2000 with the reclassification of Lake Phelps 
[Index No. 30-14-4-6-1] from Class C Sw to Class B Sw ORW. 

Authority G.S. ] 43-2 1 4.1: 143-215.1: 143-215.3(a)(l ). 

•k-k'k'kit'it'k'k'k'k-k-k'k-it-k'k'k'k'it 

Notice IS hereby given in accordance with G.S. 150B-21.2 
thai the DENR/Coastal Resources Commission intends to 
amend the rules cited as 15A NCAC 7H .0201. .0203. .0209. 
.1301. .1601. .1901. .2301: 7K .0203. .0209. Notice of Rule- 
making Proceedings was published in the Register on May 1. 
1998. 

Proposed Effective Date: August 1. 2000 

Public Hearings will be conducted at the following times and 

locations: 

Bertie Count}': July 13. 7:00 p.m.. Bertie Count}' Superior 

Courthouse. 104 Dundee Street. Windsor. NC 27983 

Beaufort Count}': July 13. 7:00 p.m.. Beaufort County District 

Courthouse. 112 West 2'"^ Street. Washington. NC 2:'889 

Brunswick County: July 13. 7:00 p.m.. Government Center, 

Public Assembly Bldg. Count}' Commissioners Chambers. 45 

Courthouse Drive. Bolivia. NC 28422 

Craven Count}-: July 14. 7:00 p.m.. Count}' Courthouse. 302 

Broad Street New Bern. NC 28560 

Hertford Count}': July 14. 7:00 p.m.. County Courthouse. ~01 

North King Street. WintonNC. 27986 

Washington Count}-: July 14, 7:00 p.m.. Count}- Courthouse. 

120 Adams Street. Plymouth. NC 27962 A 

Pamlico Count}-: July 14. 7:00 p.m.. Count}' Courthouse. 202 ^ 

Main Street. Ba\'boro, NC 28515 



1937 



NORTH CAROLINA REGISTER 



June 1, 1999 



13:23 



PROPOSED RULES 



NeM' Hanover Count}': July 14. ^.00 p.m.. Judicial Buikiini;. 314 

Princess Street. IVilmington. NC 28401 

Onsknv County: July 15. 7:00 p.m.. County Courthouse. Court 

Room I. Summer Sill BIdg.. 109 Old Bridge Street. Jacksonville, 

SC 28540 

Gates County: July 15. ^:00 p.m.. County Courthouse. 202 

Court Street. Gatesville. NC 27938 

Carteret County: July 15. 7:00 p.m.. Count}' Courthouse. 

Courthouse Square. Beaufort, NC 28516 

Chowan Count}': July 15, 7:00 p.m.. Count}' Courthouse, 101 

South Broad Street. Edenton. NC 27932 

Hyde Count}': July 15, 7:00 p.m.. County Courthouse, 20 

Ch'ster Creek Road. S'^'an Quarter NC 27885 

Petider Count}': July 15, 7:00 p.m.. Count}' Courthouse. 100 

H right Street. Burgas: NC 28425 

Tyrrell Count}': July 19, 7:00 p.m.. Tyrrell Count}' Finance 

Building. Conference Room 108. South Water Street. Columbia. 

NC 27925 

Perquimans Count}': July 19, 7:00 p.m., County Courthouse 

Annex, 110 North Church Street, Hertford, NC 27944 

Currituck Coimt}': July 19, 7:00 p.m.. Currituck Middle School. 

4263 Caratoke Highway Barko. NC 27917 

Dare County: July 20. 7:00 p.m.. Count}' Courthouse. Grand 

Juty Room. 300 Queen Elizabeth .Ave. Manteo, NC 27954 

Camden Count}': July 20. 7:00 p.m.. Count}' Courthouse. 11" 

North NC 343, Camden. NC 27921 

Raleigh: July 20. 7:00 p.m.. 430 North Salisbur}- Street. Dobbs 

Building Room 2115. Raleigh. NC 27603 

Pasquotank Count}': July 22, 7:00 p.m. Count}' Courthouse, 

Court Room A, 206 East Main Street, Elizabeth Cit}'. NC 27909 

Reason for Proposed Action: Proposed rules will provide 
additional protection to Estuarine and Public Trust resources by 
amending the existing Estuarine Shoreline .Area of 
Environmental Concern rules and extending .A EC shoreline 
protection rules to shorelines adjacent to public trust waters. 

Comment Procedures: Contact Charles Jones, Assistant 
Director Division of Coastal Management, 151-B Hwy 24, 
Morehead Cit}\ NC 28570. (252) 808-2808. Mailed written 
comments will be accepted through July 22. 1999. 

Fiscal Note: Rules 15A NC.4C 7H . 0209: 7K . 0209 do affect the 
experiditures or revenues of local government funds and State 
funds subject to the Executive Budget Act. Article 1 of Chapter 
143. These Rules do not have a substantial economic impact of 
at least five million dollars ($5,000,000) in a 1 2-month period. 

Fiscal Note: Rules 15 NCAC 7H .0201. .0203. .1301. .1601. 
.1901. .2301: 7K .0203 do not affect the expenditures or 
revenues of state or local governmetit funds. These Rules do not 
have a substantial economic impact of at least five million 
dollars (S5.000.000) in a 12-month period 

CHAPTER 7 - COASTAL MANAGEMENT 



SUBCHAPTER 7H - STATE GUIDELINES FOR 
AREAS OF ENVIRONMENTAL CONCERN 

SECTION .0200 - THE ESTUARINE SYSTEM 

.0201 ESTUARINE AND OCEAN SYSTEM 
CATEGORIES 

The first AECs discussed coliectivelv are those water and land 
areas of the coast that contribute enormous economic, social, and 
biological values to North Carolina as components of the 
estuarine s\stem. Included within the estuarine and ocean 
system are the following AEG categories: estuarine waters, 
coastal wetlands, public trust areas, and estuarine and public 
trust shorelines. Each of the AECs is either geographically 
within the estuary or. because of its location and nature, may 
significantly affect the estuary. 



Authority G.S. 113A-113fb)(l): 

113.A-ll3(b)(5): 1 1 3.A-1! 3(b)(6)h: 113.A-124. 



.0203 



l!3A-113(b)(2); 



MANAGEMENT OBJECTIVE OF THE 
ESTUARINE AND OCEAN SYSTEM 

It is the objective of the Coastal Resources Commission to 
conserve and manage estuarine waters, coastal wetlands, public 
trust areas, and estuarine and public trust shorelines, as an 
interrelated group of AECs. so as to safeguard and perpetuate 
their biological, social, economic, and aesthetic values and to 
ensure that development occurring within these AECs is 
compatible with natural characteristics so as to minimize the 
likelihood of significant loss of private property and public 
resources. Furthermore, it is the objective of the Coastal 
Resources Commission to protect present common-law and 
statutory public rights of access to the lands and waters of the 
coastal area. 

Authorit}' G.S 113.4-102(b)(l): 113.A-102(bl(4): 113.A-107(a): 
113A-107(b): 113A-124. 

.0209 COASTAL SHORELINES 

(e) — Rational e . — As an AEC. es tuarin e s hor e lin es , although 
charact e riz e d as dry land, ar e consid e r e d a compon e nt of th e 
es tuarin e sy s t e m b e caus e of th e clos e as s ociation with th e 
adjac e nt e stuarin e wat e rs. — Thi s S e ction d e fin e s e stuarin e 
s hor e lin e s, d es crib es th e s ignificanc e , and articulat es standards 
for d e v e lopm e nt. 

fb4(a) Description. TTie Coastal Shorelines AEC category 
includes estuarine shorelines and public trust shorelines. 
Estuarine shorelines are those non-ocean shorelines which ar e 
e sp e cially vuln e rabl e to e ro s ion, flooding, or oth e r adv e r se 
e ff e ct s of wind and wat e r and ar e intimat e ly conn e ct e d to th e 
es tuarv. This ar e a e xt e nds extending from the mean high water 
level or normal water level along the estuaries, sounds, ba\ s, and 
brackish waters as set forth in an agreement adopted by the 
Wildlife Resources Commission and the Department of 
Environm e nt, H e alth, Environment and Natural Resources 
[described in Rule .0206(a) of this Section] for a distance of 75 
feet landward. For those estuarine shorelines immediately 
contiguous to waters classified as Outstanding Resource Waters 



13:23 



NORTH CAROLINA REGISTER 



June I, 1999 



1938 



ieMA^:-/amil lllW4UllR-i3?dQ^SSfiBQffiS! 



CT«jjT-Hi?.Kn*.t^ .-■■w^ijjaa 



PROPOSED RULES 



by the Environmental Management Commission, the estuarine 
shorehne AEC shall extend to 575 feet landward from the mean 
high water level or nomial water level, unless the Coastal 
Resources Commission establishes the boundan, at a greater or 
lesser extent following required public hearing(s) within the 
affected county or count ''s. Public trust shorelines are those 
non-ocean shorelines in. Mediately contiguous to public trust 
areas, as defined in Rule 7H .0207(a) o|' this Section, located 
inland of the dividing line hcXw een coastal fishing waters and 
inland fishing waters as set forth in that agreement and extending 
30 feet landward of the nonnal high water le\el. 

fe)(bj Significance. Development within e stuarin e coastal 
shorelines influences the quality of estuarine life and is subject 
to the damaging processes of shore front erosion and flooding. 

(4)(cJ Management Objective. To ensure shoreline 
development is compatible with both the dynamic nature of 
estuarin e coastal shorelines and the values and management 
objectives of the estuarine and ocean system. 

(e)td} Use Standards. 

( 1 ) All development projects, proposals, and designs shall 
substantially preserve and not weaken or eliminate 
natural barriers to erosion, including, but not limited 
to, peat marshland, resistant clay shorelines, and 
cypress-gum protective fringe areas adjacent to 
vulnerable shorelines. 

(2) All development projects, proposals, and designs shall 
limit the construction of impervious surfaces and 
areas not allowing natural drainage to only so much as 
is necessary to adequately service the major purpose 
or use for which the lot is to be developed. 
Impervious surfaces shall not exceed 30 percent of the 
AEC area of the lot, unless the applicant can 
effectively demonstrate, through innovative design, 
that the protection provided by the design would be 
equal to or exceed the protection by the 30 percent 
limitation. Redevelopment of areas exceeding the 30 
percent impervious surface limitation can be permitted 
if impervious areas are not increased and the applicant 
designs the project to comply with the intent of the 
rule to the maximum extent practical. 

(3) Within the estuarine and public trust shoreline ABC's, 
new development, with the exception of water 
dependent uses, shall be located a distance of 30 feet 
landward of the normal high water level. Water 
dependent uses are those described jn Rule 7H 
.02G8(a)( I) of this Section. 

f34(4) All development projects, proposals, and designs shall 
comply with the following mandatory standards of the 
North Carolina Sedimentation Pollution Control Act 
of 1973: 

(A) All development projects, proposals, and 
designs shall provide for a buffer zone along 
the margin of the estuarine water which is 
sufficient to confine visible siltation within 25 
percent of the buffer zone nearest the land 
disturbing development. 

(B) No development project proposal or design 
shall permit an angle for graded slopes or fill 



which is greater than an angle which can be 
retained by vegetative cover or other adequate 
erosion-control devices or structures. 
(C) All development projects, proposals, and 
designs which involve uncovering more than 
one acre of land shall plant a ground cover 
sufficient to restrain erosion within 30 working 
days of completion of the grading; provided 
that this shall not apply to clearing land for the 
purpose of forming a reservoir later to be 
inundated. 
f4-)(5) Development shall not have a significant adverse 

impact on estuarine resources. 
(4)16] Development shall not significantly interfere with 
existing public rights of access to, or use of, navigable 
waters or public resources. 
(4)Uj No major public facility shall be permitted if such 
facility is likely to require extraordinary public 
expenditures for maintenance and continued use, 
unless it can be shown that the public purpose served 
by the facility outweighs the required public 
expenditures for construction, maintenance, and 
continued use. For the purpose of this standard, 
"public facility" shall mean a project which is paid for 
in an\ part by public funds. 
ffllS) Development shall not cause major or irreversible 
damage to valuable, documented historic architectural 
or archaeological resources. 
ffi(9) Established common-law and statutory public rights 
of access to the public trust lands and waters in 
estuarine areas shall not be eliminated or restricted. 
Development shall not encroach upon public 
accesswa>s nor shall it limit the intended use of the 
accessways. 
W(10) Within the AEC for shorelines contiguous to waters 
classified as Outstanding Resource Waters by the 
EMC, no CAMA permit will be approved for any 
project which would be inconsistent with applicable 
use standards adopted by the CRC, EMC or MFC for 
estuarine waters, public trust areas, or coastal 
wetlands. For development activities not covered by 
specific use standards, no permit will be issued if the 
activity would, based on site specific information, 
materially degrade the water quality or outstanding 
resource values unless such degradation is temporary. 
ffi(e) Specific Use Standards for ORW Estuarine Shorelines. 
( 1 ) Within the AEC for estuarine shorelines contiguous to 
waters classified as ORW by the EMC, all 
development projects, proposals, and designs shall 
limit the built upon area to no more than 25 percent of 
the AEC area of the land to be developed or any lower 
site specific percentage as adopted b> the EMC as 
necessary to protect the exceptional water quality and 
outstanding resource values of the ORW, and shall: 

(A) have no stormwater collection system; 

(B) provide a buffer zone of at least 30 feet from 
the mean high water line; 



1939 



NORTH CAROLINA REGISTER 



June 1, 1999 



13:23 



PROPOSED RULES 



(C) otherwise be consistent with the use standards 
set out in Paragraph (e) of this Rule. 

(2) Development (other than single-family residential 
lots) more than 75 feet from the mean high water line 
but within the AEC which as of June 1. 1989: 

(A) has a CAMA pennit application in process, or 

(B) has received preliminary subdivision plat 
approval or preliminary site plan approval 
under applicable local ordinances, and in which 
substantial financial resources have been 
invested in design or improvement; will be 
permitted in accordance with rules and 
standards in effect as of June 1, 1989. 

(3) Single-family residential lots which would not be 
buildable under the low-density standards defined in 
Paragraph (0( I ) of this Rule may be developed for 
single-family residential purposes so long as the 
development complies with those standards to the 
maximum extent possible. 

(4) For ORW's nominated subsequent to June 1. 1989, the 
effective date in Paragraph (f)(2) of this Rule shall be 
the dates of nomination by the EMC. 



Authority- G.S. 
I13A-124. 



U3A-I07(b): 113A-I08: 1I3A-I13(h>: 



SECTION .1300 - GENERAL PERMIT TO MAINTAIN: 

REPAIR AND CONSTRUCT BOAT RAMPS 

ALONG ESTUARINE SHORELINES AND INTO 

ESTUARINE AND PUBLIC TRUST WATERS 



Authority G.S. 
113A-lis.!. 



II3-229(cl): 1I3.A-U)~(ai(b): 113A-113(b): 



SECTION .1900 - GENERAL PERMIT TO ALLOW 

FOR TEMPORARY STRUCTURES WITHIN 

ESTUARINE AND OCEAN HAZARD AECs 

.1901 PURPOSE 

This permit will allow for the placement of temporary 
structures within estuarine and public trust shorelines, and ocean 
hazard AECs according to the provisions provided in Subchapter 
7J .1 100 and according to the guidelines in this Subchapter. 



.4uthorit}- G.S. 
113A-lis.I. 



113-229(cl): I13A-I07(a)(b): 1I3A-I13(b): 



SECTION .2300 - GENERAL PERMIT FOR 

REPLACEMENT OF EXISTING BRIDGES AND 

CULVERTS IN ESTUARINE WATERS, ESTUARINE 

SHORELINES, PUBLIC TRUST AREAS, 

AND COASTAL WETLANDS 

.2301 PURPOSE 

A general permit for replacement of existing bridges and 
culverts in estuarine waters, estuarine and public trust shorelines, 
public trust areas, and coastal wetlands shall be obtained 
pursuant to the rules in 15A NCAC 7J . 1 100 and this Section to 
replace existing bridges and culverts in estuarine water, estuarine 
shor e lin e , and public trust shorelines, public trust areas and 
coastal wetland AECs. 



.1301 PURPOSE 

This permit will allow the construction of boat ramps of 
suitable materials along estuarine and public trust shorelines and 
into estuarine and public trust waters AECs according to the 
authority provided in Subchapter 7J . II 00 and according to the 
following guidelines. This permit will not apply to the Ocean 
Hazard AEC. 



Authority G.S. 113A-I07(aj: 
113A-118.1: 113A-124. 



1I3A-I07(b): 113A-113(h): 



SECTION .1600 - GENERAL PERMIT FOR THE 

INSTALLATION OF AERIAL AND SUBAQUEOUS 

UTILITY LINES WITH ATTENDANT STRUCTURES 

IN COASTAL WETLANDS: ESTUARINE WATERS: 

PUBLIC TRUST WATERS AND ESTUARINE AND 

PUBLIC TRUST SHORELINES 

.1601 PURPOSE 

This permit will allow for the installation of utility lines both 
aerially and subaqueously in the coastal wetland, estuarine 
water, public trust areas and estuarine and public trust shoreline 
AECs according to the authority provided in Subchapter 7J 
. 1 1 00 and according to the following guidelines. This general 
permit shall not apply to the ocean hazard AECs. 



Authority G.S II3A-107: 1 1 3.4-1 18. 1: 1 1 3.4- 1 24. 

SUBCHAPTER 7K - ACTIVITIES IN AREAS OF 

ENVIRONMENTAL CONCERN 
WHICH DO NOT REQUIRE A COASTAL AREA 

MANAGEMENT ACT PERMIT 

SECTION .0200 - CLASSES OF MINOR 

MAINTENANCE AND IMPROVEMENTS WHICH 

SHALL BE EXEMPTED FROM THE CAMA MAJOR 

DEVELOPMENT PERMIT REQUIREMENT 

.0203 PRIVATE BULKHEADS: RIPRAP: AND PIERS 
EXEMPTED 

(a) The NC Coastal Resources Commission hereby exempts 

from the Coastal Area Management Act permit requirement 

work in the estuarine shor e lin e shoreline, public trust shoreline, 

and public trust waters areas of environmental concern necessary 

to maintain, repair, and construct private bulkheads with backfill, 

and to place riprap material along shorelines, and construct piers 

or mooring facilities in waters of North Carolina. This 

exemption is subject to the following conditions and limitations: 

( I ) The activities exempted by this Rule shall be private, 

non-commercial activities conforming to the standards 

and conditions contained in this Rule. This 

exemption does not apply to development associated 

with multi-unit residential developments larger than 



13:23 



NORTH CAROLINA REGISTER 



June 1, 1999 



1940 



-„^„w.^.,,...an^,_ 



■■ 



PROPOSED RULES 



duplexes or to marinas, commercial harbors, 
communin or neighborhood boat access, fish houses 
or similar commercial activities. 

(2) This exemption is applicable only along estuarine 
shorelines void of wetland vegetation types described 
in G.S. 1 13-229, or where all construction is to be 
accomplished landward of such vegetation, or where 
the pier is elevated above said wetlands. 

(3) This exemption only applies to bulkheads, riprap, and 
piers in non-oceanfront areas. 

(4) This exemption does not eliminate the need to obtain 
any other required federal, state. Or local 
authorization. 

(5) Before beginning any work under this exemption the 
Department of Environm e nt. H e a l th. Environment and 
Natural Resources representative must be notified of 
the proposed activity to allow on-site review of the 
bulkhead, riprap material, or pier alignment. 
Notification can be by telephone, in person, or in 
writing. Notification must include: 

(A) the name, address, and telephone number of 
landowner and location of work including 
county, nearest community, and water body; 

(B) the dimensions of the proposed pier, bulkhead 
with backfill, or the area dimensions to be 
covered by placement of riprap material: 

(C) confirmation that a written statement has been 
obtained, signed by the adjacent riparian 
property owners, indicating that they have no 
objections to the proposed work. (These 
statements do not have to be presented at the 
time of notification of intent to perform work, 
but the permittee must make it available to 
CRC agents at their request.) 

(6) The landowner must agree to perform the work 
authorized in this Rule in a manner so as to conform 
with standards for development in the estuarine or 
public trust shoreline area of environmental concern. 

(b) Bulkheads and Riprap: Conditions 
(f) The permittee shall maintain structure of areas of 
riprap material authorized in this Rule in good 
condition. 

(2) Bulkhead with backfill, and placement of riprap 
material exempted by this Rule shall be limited to a 
maximum shoreline length of 200 feet. 

(3) The bulkhead backfill and riprap materials must be 
obtained from an upland source. 

(4) No excavation is exempted under this Rule except that 
which may be required for installation of the bulkhead 
wall, deadmen. cables, piles, etc. 

(5) The proposed bulkhead alignment or area for 
placement of riprap material must be staked or flagged 
by the landowner in consultation with, or approved 
by, a state or federal permit officer prior to any 
construction activity. The bulkhead must be 
positioned so as not to extend more than an average 
distance of two feet waterward of the mean high water 
contour; in no place shall the bulkhead be more than 



five feet waterward of the mean high water contour. 
Construction activities must begin 90 days after 
approval of the alignment or area. 

(6) The bulkhead must be solid structure constructed of 
treated wood, concrete slabs, metal sheet piles, 
corrugated asbestos sheeting, or similar materials. A 
structure made of organic material, tires, car bodies, 
or similar materials is not considered a bulkhead. 

(7) The bulkhead must be structural 1> tight so as to 
prevent seepage of backfill materials through the 
bulkhead. The bulkhead must be constructed prior to 
any backfilling activities. 

(8) Riprap material must consist of clean rock or masonry 
materials such as marl, brick, or broken concrete. 
Materials such as tires, car bodies, scrap metal, paper 
products, tree limbs, wood debris, organic material or 
similar material are not considered riprap. 

(c) Piers: Conditions 

( 1 ) Exemptions for pier construction along natural 
shorelines are available only for lots with shoreline 
lengths 75 feet or greater. Exemptions ma)' be used 
on shorelines in human-made canals and basins 
regardless of shoreline length. 

(2) Piers and mooring facilities must not exceed 100 feet 
in total length off-shore; must not be w ithin 1 50 feet 
of the edge of a federally maintained channel; must 
not extend past the four foot mean low water contour 
line (four foot depth at mean low water) of the water 
bod>; must not exceed six feet in width; must not 
include an enclosed structure: and must not interfere 
with established navigation rights of other users of the 
water body and must have a minimum setback of 15 
feet between any part of the pier and the adjacent 
property owners' areas of riparian access. The line of 
division of areas of riparian access shall be 
established by drawing a line along the channel or 
deep water in front of the properties, then drawing a 
line perpendicular to the line of the channel so that it 
intersects with the shore at the point the upland 
property line meets the water's edge. The four foot 
mean low water restriction shall not apply to piers 
constructed in canals and basins dredged irom areas 
above normal high water (NHW) or normal water 
level (NWL). 

(3) This exemption shall not apply to docks and piers 
being built within shellfish franchises or leases unless 
the applicant for authorization to construct can 
provide written confirmation of no objections to the 
proposal from the lessee. 

(4) Piers authorized by this exemption shall be for the 
exclusive use of the land owner, and shall not provide 
either leased or rented docking space or any other 
commercial services. Piers and mooring facilities 
designed to provide docking space for more than tu o 
boats shall, because of their greater potential for 
adverse impacts, be reviewed through the permitting 
process, and, therefore, are not authorized by this 
exemption. 



1941 



NORTH CAROLINA REGISTER 



June /, 1999 



13:23 



PROPOSED RULES 



(5) Piers and docks shall in no case extend more than 1/4 
the width of a natural water body, canal or basin. 
Measurements to determine widths of the water body. 
canals or basins shall be made fi^om the waterward 
edge of any coastal wetland vegetation which borders 
the water body. The 14 length limitation shall not 
apply when the proposed pier is located between 
longer piers within 200 feet of the applicant's 
property. However, the proposed pier shall not be 
longer than the pier head line established by the 
adjacent piers, nor longer than 1/3 the width of the 
water bod>. 

(6) Any portion of a pier (either fixed or floating) 
extending from the main structure and six feet or less 
in width shall be considered either a "T" or a finger 
pier. 

(7) Any portion of a pier (either fixed or floating) greater 
than six feet wide shall be considered a platform or 
deck. 

(8) "T"s. finger piers, platfomis. and decks of piers must 
not exceed a combined total area of 200 square feet. 

(9) Platforms and decks shall have no more than six feet 
of an\ dimension extending over coastal wetlands and 
shall be elevated at least three feet above any coastal 
wetland substrate as measured from the bottom of the 
decking. 

Authority- G.S. 113A-I03(5)c: II3A-II8fa). 

.0209 EXEMPTION/ACCESSORY 

USES/MAINTENANCE 
REPAIR/REPLACEMENT 

(a) Accessory uses that are directly related to the existing 
dominant use. but not within the exclusion set out in G.S. 
1 13A-103(5)(b)(6) and that require no plumbing, electrical or 
other service connections and do not exceed 200 square feet 
shall be exempt from the CAMA minor development permit 
requirement if they also meet the criteria set out in Paragraph (c) 
of this Rule. 

(b) Any structure or part thereof may be maintained, repaired 
or replaced in a similar manner, size and location as the existing 
structure without requiring a permit, unless such repair or 
replacement would be in violation of the criteria set out in 
Paragraph (c) of this Rule. This exemption applies to those 
projects that are not within the exclusion for maintenance and 
repairs as set out in G.S. 1 13A-103(5)(b)(5) and Rule .0103 of 
this Subchapter. 

(c) In order to be eligible for the exemptions described in 
Paragraphs (a) and (b) of this Rule, the proposed development 
activity must meet the following criteria: 

( 1 ) the development must not disturb a land area of 
greater than 200 square feet on a slope of greater than 
1 percent; 

(2) the development must not involve removal, damage, 
or destruction of threatened or endangered animal or 
plant species; 

(3 ) the development must not alter naturally or artificially 
created surface drainage channels; 



(4) the development must not alter the land fomi or 
vegetation of a frontal dune; 

(5) the development must not be within tw e nty 30 feet of 
any p e rman e nt surfac e wat e rs; normal water level; and 

(6) the development must be consistent v\ith all 
applicable use standards and local land use plans in 
effect at the time the exemption is granted. 

Authority G.S. I I3A-I03(5)(bj: I I3A-I03(5)(cj; 113A-111: 
113A-UH(a>: 113A-nO(8). 



TITLE 21 - OCCUPATIONAL LICENSING BOARDS 

CHAPTER 20 - BOARD OF REGISTRATION FOR 
FORESTERS 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the Board of Registration for Foresters intends to 
adopt the rule cited as 15 NCAC 20 . 0123 and amend the rules 
cited as 15 NCAC 20 .0101. .0103-.0106. .0117. .0120. .0122. 
Notice of Rule-making Proceedings vas published in the 
Register on .April 1 . 1999. 

Proposed Effective Date: August 1. 2000 

A Public Hearing will be conducted at 1:30 p.m. on June 22. 
1999 at the Wake County Office Park. .Agriculture Building. 
Room 10^. 4001 Caiya Drive. Raleigh. NC. 

Reason for Proposed Action: The 1997 Legislature passed 
HB 5'' 7 which amended Chapter 89B of the General Statutes 
changing procedures for registration for foresters and making 
registration mandatory instead ofvoluntaiy. 

Comment Procedures: Mail written comments to NC Board 
of Foresters. PO Box 27393. Raleigh. NC 27611 by July 1. 1999 
or make oral presentation at public hearing. Written copy of 
oral comments encouraged. 

Fiscal Note: These Rules do not affect the expenditures or 
re^-enues of state or local government funds. These Rules do not 
have a substantial economic impact of at least five million 
dollars (85.000,000) in a 12-month period. 

SECTION .0100 - GENERAL 

.0101 PURPOSE OF PROGRAM 

Th e Stat e Board of R e gistration for For e st e rs has th e s tatutory 
duty and authority to administ e r a voluntary program of 

registration of foresters. Th e s e rules shall govern th e 

r e gi s tration program of th e Board. The rules in this Chapter 
shall govern the registration program for foresters . 

Authority G.S 89B-6. 

.0103 QUALIFICATIONS FOR REGISTRATION 



13:23 



NORTH CAROLINA REGISTER 



June 1, 1999 



1942 



vmnmnvmamRainE 



BHM^^TT^uwMHHUMfg-^H^amggTHfiffyi^ngBaarggag 



iilTiin tf itTIiWl^ '"'- ^'-'^ 



PROPOSED RULES 



All North Carolina r e sid e nt app l icants r e qu es ting r e gistration 
without — e xam i nation — aro requir e d — te — furnish — with — their 
applications th e fo l lowing: 

m A l e gibl e copy of th e ir official coll e g e transcripts, 
cov e ring the p e riod for which cr e dit i s claim e d, and 
showing e \ id e nc e of graduation. An applicant with a 
bach e lor's degre e in a curriculum oth e r than for e stry 
but with a mast e r of for es try, mast e r of sci e nc e or 
higher d e gr ee in forestry from a schoo l or coll e g e of 
for e stry accr e dit e d at th e tim e of graduation by the 
Soci e ty ' of Am e rican For e st e rs s hall b e consid e red to 
qua l ify'. 

{¥) A r e cord of two or mor e y e ars of e xp e ri e nc e in th e 
practic e of forestry. S u ch e xp e ri e nc e shall hav e b ee n 
gain e d after r e c e iving th e qual i fy ing d e gr ee in forestry 
and s hall b e r e l e vant and ad e quat e in th e judg e m e nt of 
th e Board. 

(^ Fiv e r e f e renc e s, as d e fin e d in Rul e .0005. 

(a) An application mav be obtained from the Secretary of the 
Board . 

(b) An applicant shall submit an application to the Secretary 
which shall include: 



12) 

t4J 



Legible official college transcripts, if applicable . 

Five references as required in Rule .0105 of this 

Section . 

Proof of professional work experience . 

Payment of application fee as set out in Rule .0107 of 

this Section . 

(c) A school of Forestry' accredited by the Society of 
American Foresters is an approved school or college for 
purposes of G.S. 89B-9. An applicant who holds a forestry 
degree from a university outside of the United States may qualify 
for registration jf he/she provides verification to the Board 
which demonstrates that the degree js equivalent to SAF 
accreditation standards. 

(d) For purposes of G.S. 89B a forestry curriculum means a 
major in forestry . 

(e) TTie Board may issue a forester-in-training certificate to an 
applicant who has completed the education requirement in G.S. 
89B-9(a)( 1 ). The certificate will be valid for up to 4 years. The 
time period may be extended by the Board in case of hardship 
beyond the control of the applicant . 

Authority G.S. 89B-6; 89B-9. 

.0104 EXAMINATIONS 

(a) An applicant who do es not hav e a for es try d e gr ee from an 
approved s chool and two y e ar s " e xp e ri e nc e in forestry must tak e 
an e xamination pr e par e d and administ e red by th e Board. An 
"approv e d s chool" is on e that appear s on th e li s t of s chools 
approv e d by the Soci e ty of Am e rican For e st e r s . — Thi s li s t is 
adopt e d by r e ferenc e und e r G.S. 1 50B 1 4 (c). Examinations will 
be offered twjce annually. An applicant ma\ attempt the 
examination no more than three times within any six year period . 

(b) Wh e n th e Board finds that an e xamination for r e gi s tration 
i s r e quir e d, th e applicant will b e so not i fi e d. Th e applicant will 
b e notifi e d by certifi e d mail, r e turn r e c e ipt r e qu e st e d, not le ss 
than 30 days befor e th e e xamination, a s to th e time and plac e of 



th e e xamination. If the applicant fails to r e spond within ten days 
aft e r th e r e c e ipt of this notice, it will b e assum e d that th e 
applicant do e s not plan to tak e the examination. Th e applicant's 
fil e will th e n b e con s id e r e d inactiv e and no furth e r action will b e 
in i tiat e d by th e Board. The application f ee will b e forf e it e d. 
Examination s will b e written. Applicants shall be notified by 
certified mail, return receipt requested, not less than 30 days 
before the examination, as to the time and place of the 
examination. If the applicant fails to respond at least ten davs 
prior to the date of the exam, it shall be assumed that the 
applicant does not plan to take the examination. TTie applicant's 
file shall then be considered inactive and no further action shall 
be initiated by the Board. The application fee shall be forfeited. 

(c) The passing grad e on any examinat i on for r e gi s tration 
shall b e 70 p e rc e nt. The passing grade for registration shall be 
70 percent on any exam. The determination by the Board as to 
the score on each exam shall be final. 

(d) Re-examination fees shall be forty dollars ($40.00) p er 
examination. 

Authority G.S. 89B-6: 89B-12. 

.0105 REFERENCES 

(a) Five references are required to satisfy the Board of an 
applicant's professional experience and moral character Three 
or more shall be practicing foresters in North Carolina. No more 
than one of the practicing forester references shall be an 
employee of the same firm or agency as the applicant. No 
member of the Board shall act as a reference for any applicant 
for registration. 

(b) if a majority of the references do not recommend 
ap proval, the Board shall reject the applicant. 

(c) If two of the references do not recommend approval, the 
Board shall request more detailed input from all references to 
use in evaluating the applicant. 

Authorit}- G.S 89B-6: 89B-9. 

.0106 REGISTRATION FEES 

lAH Fees sent to the Board for any segment of the registration 
process must may be in the form of money orders, bank drafts, 
or checks payable to the Secretary, Board of Registration for 
Foresters. The fee for registration shall b e js thirty five dollars 
($35.00). ($35.00), fifteen dollars ($15.00) of which shall 
accompany th e application and th e r e maining twenty dollars 
($20.00) of which s hall b e paid on r e qu e st b e fore i ss uanc e of th e 
r e gistration c e rtificat e be submitted by the applicant at the time 
of application. An approved applicant shall submit an additional 
fee of forty dollars ($ 40.00) to receive a certificate of 
registration . Annual renewal fee s hall b e is tv ^ cnty dollars 
($20.00) thirty dollars ($30.00). annuallv. 

Authorit}- G.S 89B-6: 89B-I0; 89B-1I. 

.0117 RECIPROCITY 

(a) Non-residents and individuals who have moved to ef 
North Carolina who wish to b e come regi s t e t e d und e r Chapt e r 
8 98. and who are legally registered or licensed as a r e gist e r e d or 



1943 



NORTH CAROLINA REGISTER 



June 1, 1999 



13:23 



PROPOSED RULES 



lic e ns e d forester in another state in th e ir own stat e, shall submit 
evidence of such registration of licensing to the Board. A 
statement from the Board of registration or licensing in the state 
in which they are legally registered or licensed attesting that they 
are legalK registered or licensed to practice forestn. in that state, 
and indicating the final date on which their registration or license 
remains valid, shall be accepted by the Board as adequate 
evidence. Th e Board may require additional e vid e nc e if it is 
consider e d n e c e ssary. This provision shall not apply unless the 
state in which the applicant is registered or licensed observes 
similar rules of reciprocit> in regard to persons registered under 
the provisions of G.S. 89B. 

(b) If the Board determines that the reciprocity applicant is 
qualified to practice as a registered forester in North Carolina, 
th e appl i cant will b e r e c e iv e a l e tt e r from th e Board conv e y i ng 
thi s approval for a stat e d p e riod of tim e the Board shall issue a 
letter conve\ ing this approval. 

(c) The fee for obtaining such reciprocity shall be the same as 
is charged a North Carolina resident seeking to obtain 
registration in the state of North Carolina. (See Rule .0106 of 
this Section). 

(4) An appl i cant who is a r e sident of a stat e that do e s not 
hav e a r e gi s tration or lic e nsing law will not be grant e d 
r e ciprocity in North Carolina, e v e n though the applicant ha s a 
valid lic e ns e of r e gistration in anoth e r s tat e of stat e s. 

fe) Initial application s for r e ciprocity shall b e act e d upon by 
th e Board. — Applications for r e n e wal of r e ciprocitv' shal l b e 
handl e d administrativ e ly by th e s e cr e tary. 

Author in- G.S. 89B-6: 89B-9. 



.0120 CERTIFICATION OF CONSULTING 
FORESTERS 

The — Board will — r e ceiv e affidavits annually — from e ach 
r e gist e r e d for e ster s ee king approval to practic e as a consulting 
forest e r. Each affidavit must b e on th e prop e r form suppli e d by 
th e Board and submitted by June 30 e ach y e ar. Thes e affidavits 
will b e r e viewed by th e S e cr e tary Tr e asur e r, and all that cl e arly 
moot th e requirem e nt s of those Rules will b e approv e d by th e 
S e cr e tary Treasur e r. Any applications which ar e qu e stionabl e 
or app e ar not to m ee t th e r e quir e m e nt s of th ese Rul e s will b e 
voted on by th e Board. 

(a) Each registered forester seeking approval to practice as a 
consulting forester shall file an affidavit annually. Each 
affidavit must be on the proper form su pplied by the Board and 
shall be submitted b\ June 30 each year These affidavits will be 
reviewed by the Secretary -Treasurer, and all that clearly meet the 
requirements of these rules shall be approved by the Secretary- 
Treasurer. 

(b) All consulting foresters must either have a BS or higher 
degree with a forestry major fi-om a school or college of forestry 
accredited by the Society of American Foresters or shall have 
passed the Board's comprehensive written examination designed 
to show knowledge approximating that obtained through 
graduation from a four year school or college of forestry 
accredited by SAP. 

(c) All affidavits which are questionable or appear to not meet 
the requirements of G.S. 89B will be voted on by the Board. 



Authority G.S. 89B-2: 89B-6. 

.0122 HANDLING OF COMPLAINTS 

(a) Complaint s r e c ei v e d by th e Board of improp e r, ill e gal, 
incomp e t e nt or oth e rw ise unethical activity or conflict of int e r es t 
Notarized letters received by the Board identit\ing specific 
complaints of gross negligence, fraud, deceit or flagrant 
misconduct in the practice of forestry or incompetence by a 
registered forester will be folloyved up by written 
correspondence to the accused requesting a response to the 
accusation accusation, or bv other means deemed appropriat e by 
th e Board . The Board may choose to request the complainant, 
the accused registrant, or both to personally appear before the 
Board. 

(b) Following a review of the facts and verification of the 
violation, the Board wiU may choose appropriate action, which 
may include: 

( 1 ) revocation or suspension of the individual as a 
registered forester as outlined in Rule .0016 .0106 of 
this Chapt e r Section . 

(2) r e vocation or c e rtification as a consulting forester, or 
warning to the registrant outlining the violation and 
directing that it be stopped. 

(^ a warning to th e r e gistrant outlining th e violation and 
dir e cting that it b e stopped. 
(e) Complaints alleging violation s a s outlin e d in G.S. SOB 15 
by individuals who ar e not r e gi s t e red for e sters or are not 
c e rtifi e d a s consulting for e st e rs will b e act e d on by th e Board. 
(T-) Wh e n, in th e opinion of th e Board, a violation e xist s , 
a l e tt e r will b e s e nt to th e accu se d outlining th e 
conc e rn and dir e cting that th e violation d es i s t. — A 
l e tt e r of concurr e nc e with thi s dir e ctiv e will b e 
r e qu e st e d from th e violating party. 

(3) Wh e n th e violation i s consid e r e d flagrant, or wh e n it 
continu e s e v e n aft e r a warning by th e Board, th e 
Board may choos e to r e f e r th e cas e to th e Attorn e y 
G e n e ral r e comm e nding l e gal action against th e 
violator. 



Authority G.S. 89 B- 
58. 



89B-6: 89B-15: 89B-I5: 150B-3: 150B- 



.0123 CONTINUING EDUCATION 

(a) All registered foresters shall attend continuing education 
courses annually to maintain their registration. Ten CPE 
(Continuing Forester Education) credits approved by the Society 
of American Foresters" CPE Coordinator shall be required each 
year, beginning with the fiscal year July E, 1999 through June 
30. 2000, except as outlined in paragraph (c) of this Rule. 
CFE's must be SAP category I, 2, 3 or 4, with at least six being 
from category 1. 

(b) Registered foresters shall verify CPE compliance to the 
Board with each annual renewal. 

(c) Those registered foresters who provide information to the 
Board which verifies that they are fully retired from a career in 
forestry may qualify to continue their registration by earning a 
minimum of three category 1 , 2, 3, or 4 CPE's annually. 



13:23 



NORTH CAROLINA REGISTER 



June 1, 1999 



1944 



fftf U UIHM .MBI J LULHU! 



iMumBPmwwmMt^ttf flffiEttflffl^mB! 



jaa:BgCTatf'-->^n>.P^,.->>-.*ci^«Ta 



PROPOSED RULES 



Authorin-G.S. 89B-6: 89B-1I. 



I 



♦ 



« 



1945 NORTH CAROLINA REGISTER June 1, 1999 13:23 



TEMPOR.4R Y RULES 



TliL' Codifier of Rides has entered the following, temporaiy nde(s) in the Sonh Carolina Administrative Code. Pursuant to U.S. 
150B-2I. lie), publication of a temporaiy ride in the North Carolina Register ser\'es as a notice of rule-making proceedings 
unless this notice has been previously published by the agency. 



TITLE 2 - DEPARTMENT OF AGRICULTURE 

Rule-making Agency: North Carolina Board of .Agriculture 

Rule Citation: 2 NCAC 52B .0207 

Effective Date: Aprd 30. 1999 

Findings Reviewed and Approved by: Beecher R. Gray 

Authority for the rule-making: G.S. 106-307.5: 106-316.1: 
106-31':' 106-3 IS 

Reason for Proposed Action: North Carolina has made 
extraordinary progress in reducing the number of herds 
quarantined because of pseudorabies virus (PRl) from 
approximately 600 in 1997 to only 26 at present. In order to 
protect the progress made in the program, the import 
regulations must he amended and the amendments must become 
effective immediately. The changes will ensure that imported 
swine arefi-om negative herds. Swine originating from Stage 11. 
11/111. and 111 areas ha\'e a higher degree of risk than swine from 
Stages 11' and I': therefore, adduional precautions must be taken 
and they must be taken immediately. 

Comment Procedures: Written comments mcr\' be submitted 
to David S. McLeod. Secretary: North Carolina Board of 
Agriculture. PO Box 27647. Raleigh. NC 27611. 

CHAPTER 52 - VETERINARY DIVISION 

SUBCHAPTER 52B - ANIMAL DISEASE 

SECTION .0200 - ADMISSION OF LIVESTOCK TO 
NORTH CAROLINA 

.0207 IMPORTATION REQUIREMENTS: SWINE 

(a) All swine imported into the state, except by special permit 
or for immediate slaughter, shall be accompanied by an official 
health certificate issued by a state, federal, or accredited 
veterinarian stating that they are free from any signs of an 
infectious or communicable disease and are not known to have 
been exposed to same. The health certificate shall contain the 
ear tag number of each animal or other identification acceptable 
to the State Veterinarian. Swine imported for feeding or 
breeding purposes shall be moved in clean and disinfected trucks 
or other conveyances. 

(b) Breeding swine and aH other swine being shipped to a 
breeding swine premise shall originate from a "Validated 
Brucellosis-Free" herd or a "Validated Brucellosis-Free" State 
and shall originate from a "Qualified Pseudorabies-Negative" 
herd. Qualified-Negative Gene-Altered Vaccinated Herd (QN V) 



or Pseudorabies Stage IV or V (Free) State. Breeding swine and 
all other swine being shipped to a breeding swine premise 
originating from Stage II. 11/111 orUJ areas or states must also be 
isolated and test negative to a statistical 95/5 sample test using 
an approved pseudorabies serological test between 30 and 60 
days after arrival and before being added to the herd. 

(c) All feeder swine imported into the state shall be 
accompanied by an official health certificate issued by a state, 
federal or accredited veterinarian stating or showing that: 

(1) No p se udorabi e s vaccin e ha s b ee n us e d in th e h e rd of 
origin, unless the h e rd is a ps e udorabi e s monitored 
vaccinat e d h e rd: and A permit for entr\ vsas obtained 
within 30 davs prior to entry for feeder pigs that 
originate from a Stage fL 11/111. Ill state or area and 
that they shall be quarantined until slaughtered; or 
(^ Th e swine were t e st e d and found n e gativ e for 
ps e udorabies within 30 days prior to importation; or 

f^2) The swine originated from a pseudorabies-free area as 
determined b\ the State Veterinarian; or 

f-t-)(3) The swine originated from a Qualified Pseudorabies 
Negative Herd; or 

f^(4) The swine originated from a monitored feeder pig 
h e rd, herd; or 
(5) Swine from Stage IL 11/111. IH areas or states 
originated from a Qualified Negative herd or a 
pseudorabies monitored herd or tested negative on a 
statistical (95 10) test within 30 da\s prior to 
shipment. 

(d) Healthy swine for feeding purposes may move directly 
from a farm of origin in a contiguous state on which they have 
been located for not less than 30 days to a livestock market or 
stockyard in North Carolina that has been state-federal approved 
for handling feeder swine, without the health certificate required 
herein, provided such swine are accompanied by proof of the 
pseudorabies status of the herd of origin acceptable to the State 
Veterinarian. Such swine shall be inspected by a state or federal 
inspector or approved accredited veterinarian prior to sale at the 
market. 

(e) Healthy swine may be shipped into the state for immediate 
slaughter without a health certificate provided they go directly to 
a slaughtering establishment approved by the State Veterinarian, 
or to a state-federal approved livestock market or stockyard for 
sale to an approved slaughtering establishment for immediate 
slaughter only. 

(f) Sporting swine: 

( I ) For purposes of this Rule: 

(A) "Sporting swine" means any domestic or feral 
swine intended for hunting purposes and 
includes the progeny of these swine whether or 
not the progeny are intended for hunting 
purposes; 

(B) "Feral swine" means any swine that have lived 
an\ part of its life free roaming. 



13:23 



NORTH CAROLINA REGISTER 



June 1, 1999 



1946 



TrnExuKwnmsau 



¥17 BHifgTBT^™^'***""^ I' Til il f n— 



TEMPOR.4RY RULES 



(2) No person shall import sporting swine into North 
Carohna unless: 

(A) The swine have not been fed garbage within 
their lifetime; and the herd of origin is 
validated brucellosis free and qualified 
pseudorabies negative; and 

(B) The swine have not been members of a herd of 
swine known to be infected with brucellosis or 
pseudorabies within the previous 12 months; 
and 

(C) The individual animals six months of age or 
over have a negative brucellosis and 
pseudorabies test within 30 days of movement; 
and 

(D) The swine have not been a part of a feral swine 
population or been exposed to swine captured 
from a feral swine population within the 
previous 12 months; and 

(E) The swine are accompanied by an official 
health certificate or certificate of veterinary 
inspection identifying each animal by ear tag. 
breed, age, sex, the state of origin, and 
certifying that the swine meet the import 
requirements of North Carolina. 

Note: Violation of this Rule is a misdemeanor under G.S. 
106-307.6, which provides for a five hundred dollar ($500.00) 
fine, six months' imprisonment, or both. 

History Note: A iilhority G. S. 1 06-307. 5: 1 06-3 16.1: 1 06-31 ": 

106-318: 

Eff. April 1. 1984: 

Amended Eff Februaiy 1, 1996: Mm 1. 1992: June 1. 1989: 

Jamiaiy 1, 1989: 

Temporary Amendment Eff. April 30. 1999. 



TITLE 10 - DEPARTMENT OF 
HEALTH & HUMAN SERVICES 

Rule-making Agency: Commission for Mental Health. 
Developmental Disabilities and Substance Abuse Services 

Rule Citation: 10 NC.4C 45G .0410 

Effective Date: June 15. 1999 

Findings Reviewed and Approved by: Julian Mann. Ill 

Authority for the rule-making: G.S. 90-100: 143B-147 

Reason for Proposed Action: This Rule refers to the use of 
"controlled substances in emergency kits" in long-term care 
mirsingfacilities. There is broad recognition among clinicians 
who Ixave studied the pathophysiology and management of pain 
that clinicians often seriously undertreat pain. A request was 
presented to the Commission for Mental Health, Developmental 
Disabilities and Substance Abuse Services to approve the 



proposed amendment to this Rule. The acuit}' level of nursing 
faciliry residents has increased markedly over the past few 
years. However, the rules governing controlled substances for 
residents have not been modified in more than 20 years. The 
requested changes will greatly enhance the ability to meet 
emergency medical needs of residents, yet maintain adequate 
safeguards, accountability, and security of emergency 
medications. 

Comment Procedures: Anyone wishing to comment should 
contact Charlotte F. Hall. Rule-making Coordinator 
Commission f)r MH/DD/SAS, 325 N. Salisbury Street, Raleigh, 
NC 27603. phone 919/733-0596. 

CHAPTER 45 - COMMISSION FOR MENTAL 

HEALTH, DEVELOPMENTAL DISABILITIES AND 

SUBSTANCE ABUSE SERVICES 

SUBCHAPTER 45G - MANUFACTURERS: 

DISTRIBUTORS: DISPENSERS AND RESEARCHERS 

OF CONTROLLED SUBSTANCES 

SECTION .0400 - MISCELLANEOUS 

.0410 SPECIAL CONTROLLED SUBSTANCES 
EMERGENCY KIT 

A (special) controlled substances emergency kit shall be 
permitted in those skilled nursing facilities, intermediate care 
facilities and combination facilities which are licensed with the 
Department of Human R es ourc e s: Health and Human Services: 

( 1 ) The controlled substances emergency kit shall contain 
not more than f+ve seven controlled drug entities 
(Schedules II-V) as determined by the medical staff of 
the facility with the approval of the pharmaceutical 
services committee. 

(2) Controlled substances for emergency use shall be 
obtained through purchase orders from the licensed 
pharmacist who regularly provides medications to the 
facility and its patients. When Schedule II drugs are 
purchased, federal Drug Enforcement Administration 
order forms must be used. 

(3) Controlled substances for emergency use shall be 
provided in a single unit-dose form. 

(4) A facility shall be permitted to possess not more than 
thr ee five doses of each controlled drug entity for 
each 50 licensed beds or fraction thereof The three 
five doses of each drug entity may be of the same or 
differing concentrations. 

(5) The controlled emergency drug supply shall be used 
only for a bona fide m e dical e m e rg e ncy, to meet the 
urgent needs of patients, consistent with good medical 
practice practice. The need for such use shall be 
documented in the patient's medical record consistent 
with applicable state and federal statutes and 
regulations, and shall not s e rv e a s a routin e s ourc e of 
m e dication for facility pati e nts. 



1947 



NORTH CAROLINA REGISTER 



June 1, 1999 



13:23 



TEMPOR.4R Y RULES 



(4) Th e att e nding physician s hall s ub s tantiat e in writing 

in th e pati e nt r e cord th e n e c e s s ity for th e u se of any 

controll e d s ubstanc e contain e d in the e m e rg e ncy ivit. 
ffl(6) The controlled substance emergency kit shall be 

secureh' locked and stored with access limited to 

authorized personnel, stor e d in a s e cur e ly lock e d. 

s ubstantially — construct e d — cabin e t — gov e rning — ttw 

st orage of controll e d sub s tanc e s. 
f&4(7) Only those persons designated b\ the director of the 

facility shall have access to the controlled substances 

emergency kit. 
(^(8) The pharmacist-supplier of the controlled drugs for 

emergency use shall have primary responsibility for 

the proper control and accountabilit\ of such drugs in 

the facility. 
f-l-&)(9j No person, individual, practitioner or facility shall be 

permitted to perform by virtue of these regulations 

any act otherwise prohibited by law. 



f44-) ( 10) Nothing in these regulations shall compel an\ licensed 
phamiacist to provide controlled drugs for emergency 
use to any facility against his professional judgment. 

f43-) (l I) All pertinent provisions of Article 3. Section 8, of the 
North Carolina Board of Pharmacv rules and 
regulations relating to emergenc\ kits generally shall 
apply. 

f444 (12) Exceptions to these regulations shall not be made 
unless otherwise provided by law. 

f444(l3) Each registrant desiring to maintain a controlled 
substance emergency kit must be registered with the 
Federal Drug Enforcement Administration or receive 
an exemption from registration b\ that agenc>. 

HistoiyNole: Aulhonty G.S. 90-100: 143B-147: 

Eff. June 30. 1978: 

Amended Eff: September 30. 19^8: 

Temporary Amendment Eff. June 15. 1999. 



13:23 



NORTH CAROLINA REGISTER 



June 1, 1999 



1948 



■ BTW«HH glItS Mgg BE 



irBraniiirTiT*"^"^'"^ 



R ULES RE VIE W COMMISSION 



1 his Section contains the agenda for the next meeting of the Rules Review Commission on Thursday. June 17, 1999. 10:00 
a.m. , at 1307 Glenvvood Ave.. Assembly Room, Raleigh. NC. Anyone wishing to submit written comment on any rule before 
the Commission should submit those comments to the RRC staff, the agency, and the individual Commissioners by Monday. 
June 14, 1999. at 5:00 p.m. Specific instructions and addresses may be obtained from the Rules Review Commission at 919- 



733-272 1 . Anyone wishing to address the Commission should notify the RRC staff and the agency at least 24 hours prior to 
the meetinu. 



RULES REVIEW COMMISSION MEMBERS 



Appointed by Senate 

Teresa L. Smallwood, Vice Chairman 
John Arrowood 

Laura Devan 

Jim Funderburke 

David Twiddv 



Appointed by House 

Paul Powell. Chairman 

Anita White. 2"'' Vice Chairman 

Mark Garside 

Steve Rader 

George Robinson 



RULES REVIEW COMMISSION MEETING DATES 



June 17. 1999 
July 15, 1999 
August 19. 1999 
September 16. 1999 



October 2 1 . 1 999 
November 18. 1999 
December 16, 1999 



LOG OF FILINGS 
RULES SUBMITTED: APRIL 20, 1999 THROUGH MAY 20, 1999 



AGENCY/DIVISION 



RILE NAME 



Minimum Standards for Correctional Off 
Minimum Standards for Probation/Parole Off. 
Minimum Stds/Probation/Parole Intake Off 
Minimum Standards for Parole Case Analysts 
Minimum Standards Probation/Parole Off. 
Minimum Stds Probation/parole Intensive Off 
Administration of Criminal Justice Schools 
Responsibilities of the School Director 
Admission of Trainees 
Training Course Enrollment 
Basic Training-Law Enforcement Officers 
Basic Training-Correctional Officers 
Basic Training-State Youth Services Officers 
Basic Training-Probation/Parole Officers 
Specialized Instructor Training-Firearms 
Specialized Instructor Training-Driving 
Basic Training-Wildlife Enforcement Officers 
Specialized Instructor Training 
Specialized Instructor Training 
General Instructor Certification 
Terms and Conditions 
Specific Instructor Certification 
Terms and Conditions 
Instructor Certification Renewal 



RILE 


ACTION 


ANDARDS COMMISSION 




I2NCAC9B.0107 


Amend 


I2NCAC9B.0109 


Amend 


I2NCAC9B.01I0 


Amend 


I2NCAC9B.01I2 


Amend 


I2NCAC9B .0113 


Amend 


12NCAC9B.0115 


Amend 


12NCAC9B.0201 


Amend 


12NCAC9B.0202 


Amend 


12NCAC9B.0203 


Amend 


12NCAC9B.0204 


Amend 


12NCAC9B.0205 


Amend 


12NCAC9B.0206 


Amend 


I2NCAC9B.0207 


Amend 


I2NCAC9B.0208 


Amend 


I2NCAC9B.0226 


Amend 


12NCAC9B .0227 


Amend 


12NCAC9B.0228 


Amend 


12NCAC9B.0232 


Amend 


12NCAC9B .0233 


Amend 


12NCAC9B.0302 


Amend 


12NCAC9B.0303 


Amend 


12NCAC9B.0304 


Amend 


12NCAC9B.0305 


Amend 


12NCAC9B.03I2 


Amend 



1949 



NORTH CAROLINA REGISTER 



June 1, 1999 



13:23 



RULES REVIEW COMMISSION 



Evaluation of Training Waiver 12 NCAC 9B .0403 

Trainee Attendance 1 2 NCAC 9B .0404 

Completion of Basic Training 1 2 NCAC 9B .0405 

Comprehensive Written Examination 12 NCAC 9B .0406 

Satisfaction of Minimum Training Req. 12 NCAC 9B .0407 

Comprehensive Wrinen Exam 1 2 NCAC 9B .04 1 4 

Satisfaction of Minimum Training 12 NCAC 98 .0415 

Pre-Deli ver> Training Course Report 1 2 NCAC 9C .02 1 1 

Post-Deliven, Training Course Report 12 NCAC 9C .0212 

Report of Training Course Completion 12 NCAC 9C .0213 

Reports of Training Course Presentation 12 NCAC 9C .0403 

Failure to Qualifs 12 NCAC 9E .0107 



Amend 
Amend 
Amend 
Amend 
Repeal 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 



JUSTICE/NC SHERIFFS' EDUCATION AND TRAINING STANDARDS 

Definitions 12 NCAC lOB .0103 

Basic Law Enf Training Course for Deputy 1 2 NCAC 1 OB .0502 

Evaluation for Training Waiver 12 NCAC lOB .0505 

Trainee Attendance 1 2 NCAC 1 OB .0506 

Completion of Basic Law Enf Course 1 2 NCAC 1 OB .0507 

Written Exam 1 2 NCAC 1 OB .0508 

Satisfaction of Minimum Training Req. 12 NCAC lOB .0509 

Detention Officer Certification Course 12 NCAC lOB .0601 

Admin, of Detention Officer Cert. Course 12 NCAC lOB .0703 

Limited Lecturer Certification 12 NCAC lOB .0908 

General Provisions 1 2 NCAC 1 OB . i 002 

Purpose 12 NCAC 1GB. 1401 

General Provisions 12 NCAC lOB .1402 

Basic Reserv e Deputy Sheriff Prof Cert. 1 2 NCAC I OB . 1 403 

Intermediate Reserve Deputy Sheriff Cert 12 NCAC lOB .1404 

Advanced Reserve Deputy Sheriff Cert 1 2 NCAC 1 OB . 1 405 

How to Apply 12 NCAC 1 OB . 1 406 



Amend 

Amend 

Amend 

Repeal 

Repeal 

Repeal 

Repeal 

Amend 

Amend 

Amend 

Amend 

Adopt 

Adopt 

Adopt 

Adopt 

Adopt 

Adopt 



DENR/MARINE FISHERIES COMMISSION 

Endangered or Threatened Species 
ApplicabilitA of Rules: Joint Waters 



15 NCAC 31 .0107 
15 NCAC 3Q .0106 



Amend 
Amend 



DENRAVILDLIFE RESOURCES COMMISSION 

Chasing Deer by Dogs in Certain Counties 
Wild Boar (Both Sexes) 



15 NCAC 1 OB .0109 
15 NCAC 1 OB .0204 



Amend 
Amend 



EDUCATION, STATE BOARD OF 

Purchasing Flexibility Exemption 16 NCAC 6B .0108 

Nature of Licensure 16 NCAC 6C .0102 

State Board of Education Action 1 6 NCAC 6C .0 1 03 

Application for Approval; Criteria 16 NCAC 6C .0202 

State Board Review Stds/ Approval Actions 1 6 NCAC 6C .0205 

Consortium-Based Prog./lnnovative Prog. 16 NCAC 6C .0206 

Prospective Teacher Scholarship Loans 16 NCAC 6C .0207 

General Information 16 NCAC 6C .0301 

Credit 1 6 NCAC 6C .0302 

Program Requirements for Licensure 16 NCAC 6C .0303 

License Patterns 1 6 NCAC 6C .0304 

Licenses/Non-Teacher Education Graduates 16 NCAC 6C .0305 

License Endorsement 1 6 NCAC 6C .0306 

License Renewal 16 NCAC 6C .0307 

Expired Licenses 16 NCAC 6C .0308 

Reciprocity in Licensure 16 NCAC 6C .0309 

Temporap, Permit 1 6 NCAC 6C .03 1 1 



Adopt 

Amend 

Amend 

Amend 

Amend 

Amend 

Amend 

Amend 

Amend 

Amend 

Amend 

Amend 

Amend 

Amend 

Amend 

Amend 

Amend 



13:23 



NORTH CAROLINA REGISTER 



June I, 1999 



1950 



■UUlUfUIlUHJUIUlfl 



RULES REVIEW COMMISSION 



License Suspension and Revocation 1 6 NCAC 6C .03 1 2 

Criminal History Checks 16 NCAC 6C .0313 

General Provisions 16 NCAC 6C .0501 

Graduation Requirements 16 NCAC 6D .0103 

Disposition of Old Textbooks 1 6 NCAC 6D .02 1 

Testing Requirements and Opportunities 16 NCAC 6D .0301 

Test Administration 1 6 NCAC 6D .0302 

Accountability Coordinator 16 NCAC 6D .0303 

End-of-Course Tests 1 6 NCAC 6D .0305 

Interscholastic Athletics 1 6 NCAC 6E .0202 

Driver Training 1 6 NCAC 6E .030 1 

Accreditation Procedures 16 NCAC 6G .0202 

Due Process Protections 1 6 NCAC 6G .0308 

Suspension of Powers/Duties of School Bds 1 6 NCAC 6G .0309 

General Knowledge Test for Licensed Staff 16 NCAC 6G .03 1 1 

Charter School Advisory Committee 16 NCAC 6G .0502 

Definitions ' 16 NCAC 6H .0101 

Complaint Procedures for Federal Programs 16 NCAC 6H .0103 

Administration/Special Education Programs 16 NCAC 6H .0105 

Non-Instructional Special Education Services 16 NCAC 6H .0106 

Special Ed. Assessment/Placement Proc 16 NCAC 6H .0107 

Surrogate Parents/Children/Special Needs 16 NCAC 6H .0108 

Confidentiality :Access/Special Ed. Record 1 6 NCAC 6H .0 1 09 

Special Education Due Process Procedures 16 NCAC 6H .0110 



Amend 

Amend 

Amend 

Amend 

Amend 

Amend 

Amend 

Amend 

Amend 

Amend 

Amend 

Repeal 

Amend 

Amend 

Adopt 

Adopt 

Amend 

Amend 

Amend 

Amend 

Amend 

Amend 

Amend 

Amend 



< 



STATE BOARDS/COSMETIC ART EXAMINERS, STATE 

Definitions 

Office Hours 

Purpose and Responsibility 

Prerequisites 

Applications for Salon License 

Newly Established Residential Salons 

Space Requirements 

Withdrawals 

Report of Enrollment 

Summary of Cosmetic Art Education 

Time Requirements According to Hours 

Internships 

Approval/Credit/Cosmetology Instructor 

Course of Study 

Live Model Performances 

Qualifications-Cosmetologists Teachers 

Qualifications-Manicurists Teachers 

Teacher Training Curriculum 

Applicants Licensed as Teachers 

Time and Place of Examinations 

Initial Applications and Fees 

General Examination Instructions 

Live Model Requirements 

Mannequin Requirements 

Failure to Appear for Examination 

Passing Grade for Examination 

Review of Examination 

Re-Examination 

Examination Theory Section 

Examination Practical Section 

Examination Theory Section 

Examination Practical Section 



BOARD 

21 
21 
21 
21 
21 
21 
21 
21 
21 
21 
21 
21 
21 
21 
21 
21 
21 
21 
21 
21 
21 
21 
21 
21 
21 
21 
21 
21 
21 
21 
21 



OF 

NCAC 
NCAC 
NCAC 
NCAC 
NCAC 
NCAC 
NCAC 
NCAC 
NCAC 
NCAC 
NCAC 
NCAC 
NCAC 
NCAC 
NCAC 
NCAC 
NCAC 
NCAC 
NCAC 
NCAC 
NCAC 
NCAC 
NCAC 
NCAC 
NCAC 
NCAC 
NCAC 
NCAC 
NCAC 
NCAC 
NCAC 
NCAC 



14A.0101 
14A.0103 
14A.0105 
14C .0202 
14F.0101 
14F.0105 
14G.0103 
141 .0104 
141 .0107 
141.0109 
14J .0103 
14J .0208 
14J .0501 
14K.0102 
14K.0107 
14L.0101 
14L.0105 
14L.0216 
14L .0303 
14N.0101 
14N .0102 
14N.0103 
14N .0104 
14N.0105 
14N .0108 
14N .0110 
14N.0112 
14N .0113 
14N .0601 
14N .0602 
14N .0701 
14N .0702 



Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 



1951 



NORTH CAROLINA REGISTER 



June 1, 1999 



13:23 



RULES REVIEW COMMISSION 



Uniforms 


21 NCAC 140,0101 


Adopt 


Course of Study 


21 NCAC 140.0102 


Adopt 


Equipment and Instruments 


21 NCAC 140.0103 


Adopt 


Services Perfomied 


21 NCAC 140.0104 


Adopt 


Identification Pins 


21 NCAC 140.0105 


Adopt 


Live Model Performances 


21 NCAC 140.0106 


Adopt 


Sanitation 


21 NCAC 140.0107 


Adopt 


Schedule of Civil Penalties 


21 NCAC 14P.0I01 


Adopt 


Qualifications for Licensing Teachers 


21 NCAC 14P.0102 


Adopt 


Temporary Employment Permit 


21 NCAC 14P.0103 


Adopt 


Licensing of Cosmetic Art Shops 


21 NCAC 14P.0I04 


Adopt 


Renewals; Expired Licenses 


21 NCAC 14P.0105 


Adopt 


Licenses Required 


21 NCAC 14P.0106 


Adopt 


Licenses to be Posted 


21 NCAC 14P.0107 


Adopt 


Rev. of Licenses/Other Disciplinary Meas 


21 NCAC I4P.0108 


Adopt 


Inspections 


21 NCAC I4P.0109 


Adopt 


Licensing of Beauty Salons 


21 NCAC I4P.0110 


Adopt 


Establishment of Cosmetic Art Schools 


21 NCAC I4P.0111 


Adopt 


Sanitary Ratings 


21 NCAC HP .0112 


Adopt 


Operations of Schools of Cosmetic Art 


21 NCAC 14P.01I3 


Adopt 


Cosmetology Curriculum 


21 NCAC 14P.0I14 


Adopt 


Sanitary Ratings 


21 NCAC 14P.0115 


Adopt 


Civil Penalty Procedures 


21 NCAC 14P.0116 


Adopt 



STATE BOARDS/DENTAL EXAMINERS, BOARD OF 

Dentists 



21 NCAC I6M .0101 



Amend 



STATE BOARDS/EXAMINERS OF ELECTRICAL CONTRACTORS 

SpecialK -Arranged Examinations 21 NCAC 18B .0208 Amend 

AnnualLicenseFees 21 NCAC 1 88 .0404 Amend 



RULES REVIEW COMMISSION 



May 20, 1999 
MINUTES 

The Rules Review Commission met on May 20. 1999, in the Assembly Room of the Methodist Building. 1307 Glenwood Avenue, 
Raleigh. North Carolina. Commissioners in attendance were Vice Chairman Teresa Smallwood. Steven P. Rader, Jim Funderburk, 
Laura Devan, David R. Twiddy, Mark P. Garside. and George S. Robinson. 

Staff members present were: Joseph J. DeLuca. Staff Director: Bobby Bryan, Rules Review Specialist; and Sandy Webster 

The following people attended: 



Thomas R. West 
Denise Stanford 
Frank Crawley 
Dedra Alston 
Jessica Gill 
Barb Rote 



Poyner & Spruill 

N C Board of Pharmacy 

Attorney General 

DENR ' 

DENR/Coastal Resources Commission 

DENR/Wildlife Resources Commission 



APPROVAL OF MINUTES 

The meeting was called to order at 10:03 a.m. with Vice Chairman Smallwood presiding. She asked for any discussion, comments, 
or corrections concerning the minutes of the April 15, 1999 meeting. There being none, the minutes were approved. 



13:23 



NORTH CAROLINA REGISTER 



June 7, 1999 



1952 



vaTnarHEBfKH^0«c 



=™^"*^ ' ni^iTTTfT^ 



RULES REVIEW COMMISSION 



FOLLOW-UP MATTERS 

15A NCAC lOB .0105 and .0212: DENR/Wildlife Resources Commission - The rewritten rules submitted by the agency were 
approved by the Commission. 

21 NCAC 46 .1804: NC Board of Pharmacy - The rewritten rule submitted by the agency was approved b\ the Commission 
contingent upon receiving a technical change before the rule is forwarded to the Office of Administrative Hearings. The rule was 
subsequently received. Commissioners Smallwood. Devan. and Robinson voted not to approve the rule. 

21 NCAC 46; NC Board of Pharmacy - No action was necessary on the request for a declaratory ruling. 

LOG OF FILINGS 

Vice Chairman Smallwood presided over the review of the log and all rules were unanimousK' approved with the following exception: 

1 5A NCAC 7H .2404: DENR/Coastal Resources Commission - The Commission objected to this rule due to ambiguity. In paragraph 
(c), it is not clear what constitutes "significant interference with navigation or use of waters by the public." In (d), it is not clear what 
constitutes or is meant by "adversely affect areas which possess historic, cultural, scenic, conservation, or recreational values." In 
(e), it is not clear what is meant by the terms "significantly affect." "qualitv' of the human environment" and "unnecessarily endanger." 
In November and December of 1997, the Rules Review Commission objected to identical language in nine other rules which were 
ultimately rewritten. 

COIVIIVIJSSION PROCEDURES AND OTHER MATTERS 

Mr. DeLuca stated that there is approximately $4,000 remaining in the budget for 1998-99 that can possibly be used for computer 
upgrades. Ms. Cox is at a health benefits conference today and Friday. 

The next meeting will be on June 1 7. 1 999. 

The meeting adjourned at 10:53 a.m. 

Respectfully submitted, 
Sandy Webster 



« 



1953 NORTH CAROLINA REGISTER June I, 1999 13:23 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Lmv Judge decisions along with an index 
lo all recent contested cases decisions which are filed under North Carolina's Administrative Procedure Act. Copies of the 
decisions listed In the index and not published are available upon request for a minimal charge by contacting the Office of 
Administrative Hearings. (919) ""33-2698. Also, the Contested Case Decisions are cn-ailahle on the Internet at the following 
address: http: '/www. state. tic. us/O.AlH/hearings/decision/caseindex. htm. 



OFFICE OF ADMINISTRATIVE HEARINGS 

Chief Administrative Law Judge 

JULIAN MANN. Ill 

Senior .Administrative Law Judge 

FREDG. MORRISON JR. 

ADMINISTRATE E LAW JUDGES 



Sammie Chess Jr. 
Beecher R. Gray 
Melissa Owens 
Meg Scott Phipps 



Robert Roosevelt Reil 
Dolores O. Smith 
Beryl E. Wade 



Jr. 



AGENCY 

\DMlMSTR.4TIO^ 

Occaneechi Band of the Saponi Nalion v NC Comm of Indian Affairs 
Carlton L Coleman v Administration. Division of Purchase and Contract 
Unique Printing. Inc v NC A&T. Bobhy E Aldrich, Dir of Purchasing. 
NC A&T. and Evelyn H Gales. Asst Dir of Purchasing. NC A&T 

ADMINISTR^ATIN E HEARINGS, OFFICE OF 

Steven Todd McKinnon v Office of Administrative Hearings 
Henry E Trayvvick V Office of Administrative Hearings 

ALCOHOLIC BE\ ER\GE CONTROL COMMISSION 

Alcoholic Beverage Control Commission v Kenneth Jerome 
Alcoholic Beverage Control Commission v Jesse Jacob Joyner, Jr 
Alcoholic Beverage Control Commission \ Trade Oil Company. Inc 
Alcoholic Beverage Control Commission v Las Palmas of Newlon. Inc 
Alcoholic Beverage Control Commission \ Pantana Bobs. Inc 
Alcoholic Beverage Control Comm v Partnership T/A C & J's Shipureck 
Alcoholic Beverage Control Comm v Ahdelhakeem Murawch Saleh 
Alcoholic Beverage Control Comm v Harold Webster Hadnott 
Alcoholic Beverage Control Commission v Axis Entertainment 
Sokha Huor Ramadneh v Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Commission v Delores Williams .Alnaqib 
Alcoholic Beverage Control Commission v Axis Entertainment 
Alcoholic Beverage Control Commission v James Aubrey Stephenson 
Alcoholic Beverage Control Commission v Bridgette Dee Williams 
Alcoholic Beverage Control Commission v Robert Lee. Inc 
."Mcoholic Beverage Control Comm v Partnership. T/.A Varieu Pic Up #21 
Tarus Jackson v Alcoholic Beverage Control Commission 
Linda Melton Hams v Alcoholic Beverage Control Commission 
and 
City of Charlotte 
.Alcoholic Beverage Control Comm 
Alcoholic Beverage Control Comm 
Alcoholic Beverage Control Comm 
Alcoholic Beverage Control Comm 
.Alcoholic Beverage Control Comm 
■Alcoholic Beverage Control Comm 



Simple Elegance Restaurants. Inc 
Daniel Hinton Green 
Zaheer Ahmad Bajvva 
Partnership T/A Club Old Times 
Kendall L Brumby 
Jerald Taft Howell. Jr 



CASE 




DATE OF 


PUBLISHED DECISION 


MMBER 


AU 


DECISION 


REGISTER ( ITATION 


96 DOA 0006 


Smith 


12/07/98 


13 1 3 NCR 1075 


98DOA 1016 


Phipps 


12/16/98 




98 DOA 1 743 


Owens 


02/15/99 





99 OAH 0082 


Phipps 


03/09/99 




99 OAH 0464 


Owens 


04/22/99 




97 ABC 1 205 


Phipps 


07/23/98 




97 ABC 1438 


Phipps 


06/19/98 




98 ABC 0033 


Reillv 


08/21/98 




98 ABC 01 89 


Gra\ 


03/12/99 




98 ABC 0293 


ReillK 


09/17/98 


13 11 NCR 933 


98 ABC 0296 


Morrison 


08/19/98 




98 ABC 0308 


Grav 


02/16/99 




98 ABC 0324 


Smith 


1 2/02/98 




98 ABC 0357»' 


Reillv 


07/02/98 




98 ABC 0382 


Smith 


06/30/98 


13 03 NCR 350 


98 ABC 0392 


Chess 


07/30/98 




98 ABC 0401 •' 


Reillv 


07/02/98 




98 ABC 0494 


Chess 


09/01/98 




98 ABC 0501 


Reillv 


08/11/98 




98 ABC 05 18 


Grav 


08/11/98 




98 ABC 0714 


Morrison 


10/09/98 




98 ABC 0768 


Smith 


07/13/98 




98 ABC 0820 


Owens 


02/26/99 




98 ABC 0850 


Phipps 


10/26/98 




98 ABC 0889 


Morrison 


11/06/98 




98 ABC 0960 


Owens 


10/30/98 




98 ABC 1071 


Owens 


01/29/99 




98 ABC 1 1 58 


Chess 


03/05/99 




98 ABC 1171 


Smith 


12/03/98 





13:23 



NORTH CAROLINA REGISTER 



June 7, 1999 



1954 



-_. ,s,^3^0_ 



IWH 



CONTESTED CASE DECISIONS 



AGENCY 

Alcoholic Beverage Control Comm v Kendall L Brumby 
Alcoholic Beverage Control Commission v Ronald Hardman 
Alton Ollivierra Pern v Alcoholic Beverage Control Commission 
Nedall Hassan Ahmad Hassan v Alcoholic Beverage Control Comm 
Alcoholic Beverage Control Comm v Khaled Mohamad Alzer 
Alcoholic Beverage Control Comm v Abdelhakeem M Saleh 
William Randall Banks v Alcoholic Beverage Control Commission 
Alcoholic Bev Control Comm v Partnership T/A Alston's Conv Store 
Alcoholic Beverage Control Comm v Fast Fare, Inc. 
Geo D Bishop T/A The Next Level V Alcoholic Bev Control Comm 
Alcoholic Beverage Control Comm v Frank Talle\ 
Yahya Ahamed Abullah Mosed v Alcoholic Beverage Control Comm 
Alcoholic Beverage Control Comm v Cynthia Van Dassan 
Alcoholic Beverage Control Comm v Reyad Atallah Salahaldeen T/A 

Bravo Mini Mart 
Phillip Allen Powell, Monika K Powell, Jana Vlasta Kozlik v Doyle 

D Alley, ABC Commission, Shon Talley, ALE Agent 



CASE 




DATE OF 


NUMBER 


AU 


DECISION 


98 ABC 1204 


Chess 


03/03/99 


98 ABC 1249 


Gray 


03/29/99 


98 ABC 1298 


Owens 


11/23/98 


98 ABC 1320 


Gray 


03/18/99 


98 ABC 1321 


Gray 


02/05/99 


98 ABC 1341 


Morrison 


02/12/99 


98 ABC 1355 


Gray 


02/10/99 


98 ABC 1374 


Chess 


02/16/99 


98 ABC 1398 


Gray 


02/02/99 


98 ABC 1415 


Chess 


03/24/99 


98 ABC 1452 


Phipps 


02/08/99 


98 ABC 1470 


Chess 


03/05/99 


98 ABC 1478 


Reilly 


03/15/99 


98 ABC 1624 


Gray 


03/30/99 


99 ABC 0036 


Smith 


02/23/99 



PI BUSHED DECISION 
REGISTER CITATION 



i 



BOARD OF CONTR.AC TORS 

Heritage Pointe Builders, Inc & Patrick Hannon v Bd of Contractors 



97 LBC 0243 



Phipps 



08/17/98 



CRIME CONTROL AND PI BLIC SAFETY 

Loretta Battle v Crime Victims Compensation Commission 97 CPS 0654 Gray 

Cynthia Austin V Crime Victims Compensation Commission 97 CPS 1499 Reilly 

Marcella Skaggs V Crime Victims Compensation Commission 98 CPS 0065 Owens 

Talmadge E McHenr\' v Crime Victims Compensation Commission 98 CPS 01 16 Gray 

Linda Caldwell Wiggins V Crime Victims Compensation Commission 98 CPS 01 53 Chess 

Kenneth T Lytle v Crime Victims Compensation Commission 98 CPS 01 76 Reilly 

Shirley Henryhand v Crime Victims Compensation Commission 98 CPS 0263 Morrison 

Brenda Jean Thomas v Crime Victims Compensation Commission 98 CPS 0314 Morrison 

Tareyton L Johnson v Crime Victims Compensation Commission 98 CPS 0327 Reilly 

Mia Thompson-Clark v Crime Victims Compensation Commission 98 CPS 0349 Chess 

Godfrey Akenabor v Crime Victims Compensation Commission 98 CPS 0427 Owens 

Terrv' Ramey d/b/a Ramey's Wrecker Svc v NC State Highway Patrol 98 CPS 0460 Smith 

Valine H Thompson v Crime Victims Compensation Commission 98 CPS 0674 Morrison 

RufusK Williams v Department of Crime Control & Public Safetv 98 CPS 0676 Morrison 

Aaron Anouna Pinkney v Crime Victims Compensation Commission 98 CPS 0699 Chess 

Faye E Powell v Crime Victims Compensation Commission 98 CPS 0808 Owens 

Hubert Lee Grant v Crime Victims Compensation Commission 98 CPS 0839 Morrison 

MaPi Elizabeth Troutman V Crime Victims Compensation Comm 98 CPS 0901 Smith 

Brenda H Alston v Crime Victims Compensation Commission 98 CPS 0952 Phipps 

Shirley P Chen v Crime Victims Compensation Commission 98 CPS 1015 Phipps 

Lorine Smith V Crime Victims Compensation Commission 98 CPS 1050 Gray 

Catherine Walker v Crime Victims Compensation Commission 98 CPS 1 129 Gray 

Martha Bumpass V Crime Victims Compensation Commission 98 CPS 1154 Gray 

Kenneth B Hall, Sr v Crime Victims Compensation Commission 98 CPS 1170 Mann 

DunnieG Smith v Crime Victims Compensation Commission 98 CPS 1201 Reilly 

Felicia House V Crime Victims Compensation Commission 98 CPS 1273 Smith 

Antonia F Jones v OtTice of Administrative Hearings 98 CPS 1403 Gray 

Leon A Vereen v Crime Victims Compensation Commission 98 CPS 1525 Chess 

John D Cutshaw v Crime Victims Compensation Commission 98 CPS 1646 Mann 

Roswell Foreman, F Mac Hodges v Crime Victims Compensation Comm 98 CPS 1695 Morrison 

Peggy Witkowski V Crime Victims Compensation Commission 99 CPS 0172 Chess 



08/10/98 
08/12/98 
06/05/98 
06/24/98 
08/27/98 
07/06/98 
08/11/98 
08/11/98 
09/02/98 
05/14/98 
1 0/30/98 
02/22/99 
11/18/98 
10/23/98 
03/10/99 
08/28/98 
10/21/98 
11/12/98 
11/10/98 
09/17/98 
02/15/99 
02/15/99 
02/15/99 
12/21/98 
01/04/99 
01/25/99 
01/29/99 
03/03/99 
03/25/99 
04/08/99 
05/03/99 



13:05 NCR 533 



1312NCR 1015 



13 10 NCR 853 



k 



ENGINEERS AND SI RVE\ ORS, BOARD OF EX.\MINERS FOR 

Thomas A Truelove, Jr , PE v Bd /Examiners/Engineers and Surveyors 
Kenneth D Suttles v Bd /Registration/Engineers and Land Surveyors 

EN\ IRONMENT AND NATl R.AL RESOl RCES 

Albert C Wright, Jr v Environment, Health, & Natural Resources 
Albert C Wright, Jr v Environment, Health, & Natural Resources 
Ladane Williamson and Odell Decarol Williamson v DENR 
Teresa HetJin v Department of Environment and Natural Resources 
Ronald Prater v Department of Environment and Natural Resources 
Alltel Carolina, Inc v Dept of Environment and Natural Resources 
James F Smith v Department of Environment and Natural Resources 
William Hickman v Department of Environment and Natural Resources 
Hickory Alliance v Department of Environment and Natural Resources 
and 

Godfrey Lumber Company, Inc 
John M Silvia v Department of Environment and Natural Resources 
Godfrey Lumber Company, Inc v Dept /Environment & Natural Resources 
and 

Hickory Alliance 



98 ELS 0047 
98 ELS 0099 



96EHR0610" 
96EHR0630*" 
96EHR 1926 
97 EHR 0409 
97 EHR 0451 
97 EHR 0729 
97 EHR 1 365 
97 EHR 1388 
97 EHR 1607 



97 EHR 1646 
97 EHR 1676 



Mann 
Mann 



Gray 

Gray 

Gray 

Morrison 

Reilly 

Gray 

Chess 

Gray 

Reilly 



Chess 
Reilly 



11/12/98 
02/09/99 



01/29/99 
01/29/99 
09/01/98 
07/29/98 
07/02/98 
01/28/99 
07/17/98 
11/06/98 
07/17/98 



06/03/98 
07/17/98 



13 12 NCR 1035 
UTS NCR 1578 



13.07 NCR 609 



13T1NCR 928 



♦ 



7955 



NORTH CAROLINA REGISTER 



June 1, 1999 



13:23 



CONTESTED CASE DECISIONS 



AGE NO 

Uregor. B Jackson. Brenda R Jackson v Greene Ctv HIth Dept . ENR 
Roberto Gotl, Sr \ Department of Hn\ironment and Natural Resources 
Scotland Water. Cedar Circle \ EuMronment and Natural Resources 
Wombie & Compan\ \ Dept of Environment and Natural Resources 
Erie Glenn Harrison \ Enxironment and Natural Resources 
Robert G GolT. Sr v Department of En\ ironmeni and Natural Resources 
Mid South Water S\stems. Inc v Environment and Natural Resources 
Wilbur E Earp v Department ol En\ironment and Natural Resources 
Debra Clements v Department of Environment and Natural Resources 
Norell Bahrs v Carteret Cty Health Dept . DENR 
Charles Davis \ Department of EnMronment and Natural Resources 
JC Fawv Department of Environment and Natural Resources 
llnicon Concrete. Inc v Dept of Environment and Natural Resources 
Hugh & Bonnie Mills \ Dept of Environment and Natural Resources 
Janice Spruill v Department of Environment and Natural Resources 
JM's Professional Construction S\cs . Ltd v DENR 
Ronald E Bennett \ Environment and Natural Resources 
Don W Hunt v Halifax Countv Health Department 
Clarissa Eubanks v Department of Environment and Natural Resources 
Clarissa Euhanks v Department of Environment and Natural Resources 
Clarissa Eubanks v Department of Environment and Natural Resources 
Clarissa Euhanks v Department of Environment and Natural Resources 
Clarissa Eubanks v Department of Environment and Natural Resources 
Wa\neD Magee v Department of Environment and Natural Resources 
Karen J Dixon. Myra Jones. Alphonzo Dixon v Nash Ct\ Health Dept 
A&S Construction, Inc \ Dept of Environment and Natural Resources 
Amos Vaughan v Department of En\ironment and Natural Resources 
Vi\ lan Alderman. Caboose Restaurant v Environment & Nat Resources 
H&S Marina T/A Tulls Bay Marina v Dept Env & Natural Resources 
Jim Gooch V Environmental Health Sec . Alamance County Health Dept 

Division of Air Quality 

Sebring Dev , Patrick Queen/John Amirante v DENR. Air Quality 
John Beard v DENR. Division of Air Quality 
Jerry Bryant v DENR. Division of Air Q)uality 

Division of Coastal Management 

Preston Warren v Division of Coastal Management. Wilmington. NC 
Marion T Noe \ DENR. Division of Coastal Management 

Division of Environmental Health 

Gerald P Sigal \ DENR. Division of Environmental Health 
Ronnie Lee Hamill \ Pirt Cty Health Dept . Environmental Health Div 
Joe Scichilone \ Crave Natural Resources. Div of Environmental Health 
Ralph K Crotts v Burke Counfv Env Health Dept . Septic Tank Di\ 
Carl D Wicker v Alamance Cty Health Dept , Env Health Division 

Division of Environmental Management 

Save Our Rivers. Inc . et al v Town of Highlands. EHNR, Env Mgmt . 

William W Cobev. Jr . Secretarv 
US Dept of the Interior Nat'l Park Svce v Environmental Mgmt Comm 

Division of Marine Fisheries 

Lad\ LaShanda Melvm Bryant v EHNR. Division of Marine Fisheries 
Gerald Moore, et al v DENR, Division of Marine Fisheries 
Kenny Lee Tillett v DENR. Division of Marine Fisheries 

Division of Solid H'aste Management 

Steve Aldridge. et al \ DENR. Division of Solid Waste Management 

Division of H ater Quality 

Raymond L Martin v DENR. Division of Water Quality 
Riverhills. Inc and W E Dansey. Jr v DENR. Division of Water Qualitx 
Worsles Oil Companies. Inc \ DENR. DWQ. Groundwater Section 
Upchurch. Inc v DENR. Division of Water Quality 
and 

The Sierra Club and Dogwood Alliance 
NC Forestry Association v DENR, Division of Water Quality 
and 

The Sierra Club and Dogwood Alliance 
Silver Bullet. Inc v DENR. Division of Water Qualm 

HEALTH AND HI MAN SERVICES 

Stanley C Ochulo v Off /Administrative Hearings. Mr R Marcus Lodge 



CASE 




DATE OF 


PI BLISHED DECISION 


MMBER 


ALJ 


DECISION 


REGISTER CITATION 


98 EHR 0042 


Reilly 


07/02/98 




98EHR0072*= 


Gray 


06/25/98 




98 EHR 0236 


Smith 


06/09/98 




98 EHR 034.S 


Chess 


11/05/98 




98 EHR 0373 


Reilly 


08/28/98 




98 EHR 0448'- 


Gray 


06/25/98 




98 EHR 0548 


Gray 


1 2/02/98 




98 EHR 0606 


Smith 


10/21/98 




98 EHR 0609 


Owens 


03/18/99 




98 EHR 0884 


Owens 


11/02/98 




98 EHR 0890 


Owens 


11/09/98 




98 EHR 0957 


Gray 


12/11/98 




98 EHR 0990 


Mann 


01/14/99 




98 EHR 1090 


Phipps 


1 2/08/98 




98 EHR 1215 


Reilly 


01/27/99 




98 EHR 1217 


Owens 


12/21/98 




98 EHR 1237 


Owens 


1 2/29/98 




98 EHR 1285 


Gray 


12/17/98 




98 EHR 1375*" 


Gray 


04/27/99 




98 EHR 1376*" 


Gray 


04/27/99 




98 EHR 1377*-'' 


Gray 


04/27/99 




98 EHR 1378*-' 


Gray 


04/27/99 




98 EHR 1379*" 


Gray 


04/27/99 




98 EHR 1471 


Phipps 


02/02/99 




98 EHR 1475 


ReilK 


02/10/99 




98 EHR 1476 


Gray 


03/25/99 




98 EHR 1 538 


Reillv 


01/15/99 




98 EHR 1690 


Reillv 


03/08/99 




98 EHR 1719 


Chess 


04/28/99 




99 EHR 0279 


Owens 


04/23/99 




98 EHR 0926 


Phipps 


12/11/98 




98 EHR 1314 


Gray 


01/29/99 




98 EHR 1416 


Wade 


03/01/99 




98 EHR 01 77 


Phipps 


1 0/05/98 




98 EHR 0976 


Smith 


1 2/02/98 




98 EHR 0051 


Smith 


10/02/98 




98 EHR 1 200 


Smith 


12/29/98 




98 EHR 1286 


Chess 


01/07/99 




98 EHR 1334 


Owens 


01/14/99 




98 EHR 1718 


Wade 


02/03/99 




91 EHR 0377 


Gray 


07/30/98 




98 EHR 04 10 


Smith 


08/20/98 


13 06 NCR 578 


97 EHR 1459 


Gray 


07/20/98 




98 EHR 0322 


Owens 


10/08/98 


13 09 NCR 797 


99 EHR 0336 


Owens 


04/22/99 




98 EHR 0665 


Chess 


09/09/98 


13 07 NCR 617 


98 EHR 0590 


Gray 


09/21/98 




98 EHR 0703 


Gray 


03/22/99 


13 20 NCR 1756 


98 EHR 0735 


Chess 


08/24/98 




98 EHR 0776*-' 


Reilh 


03/19/99 


13 20 NCR 1762 


98 EHR 0777*-" 


Reilly 


03/19/99 


13 20 NCR 1762 


98 EHR 0931 


Chess 


08/20/98 




98DHR0021 


ReilK 


06/24/98 





13.23 



NORTH CAROLINA REGISTER 



June 1, 1999 



1956 



wn w nn i nMmnnm ii B i 



KUlUnBUUUUfUJ 



"^-"'^'^-^ " TgiirffffifflTilTf^-^^*'^^*^^^™* 



CONTESTED CASE DECISIONS 



AGENCY 

Oliver C Johnson, Hazel T Johnson v Health and Human Ser\'ices 

Louise Streater v Health and Human Services 

Richard E Lawrence. Rebecca A Lawience v Health and Human Services 

John David Brinson v Department of Human Resources 

Wilbur L Walker V OfUce of the Chief Medical Examiner 

Stephanie Wade v Department of Health and Human Services 

Carolyn L Freeman v Department of Human Resources 

Otis L Mack. Jr v Office of Administrative Hearings 

Christopher Germano. Lee Germano v Department of Health 

Carol and Conrad Kunkel v Department of Human Services 

Donald Wayne Perry v Office of Lmergenc> Medical Services 

E Jean Woods v EDS - Medicaid 

Soma Schaefer Jolly v Village Care King. Autumn Care, DHHS 

Sandra Nelson Molina v Department of Health & Human Services 

Bemadette Anderson v Department of Health & Human Services 

Cheryl Lynn Staton v Department of Health & Human Services 

Mary Barrier v Administratne Hearing 

Jetfre\ M Holland and Capitol Hill Creative Consulting v Dept of 

the Secretary of State 
James Michael Wallace v Department of Human Resources 
Barbara Jump v Department of Human Services 
Keith Warren Kendall v Nurse Aide Registry and DHHS 
Wilson Memorial Hospital \ Department of Health & Human Services 
Kent L McMillian v Department of Human Resources 
Deborah Pelly v Department of Health & Human Services 
Brandy Shea Minton v Markus Lodge. General Counsel 
Reeva Oliver V Board of Nursing, Nursing Asst Registry 
Jackie E RatlitTv Department of Health & Human Services 
Deborah Ann Williams v Department of Health & Human Services 
Blue Line Promotions, Inc v Dept of the Secretary of State 
Police Protective Fund V Dept of the Secretary of State 
Community Funding Company V Dept of the Secretary of State 
llvas Mahmood v Department of Health & Human Services 
Gladys Cherry/CF #2/CGH v Division of Facility Services 
Bertha Blocker McDonald v Department of Health & Human Services 

Division of Child Development 

DulatovvTi Presbyterian Children's Ctr v DHHS, Child Development 
Cookie's Day Care Home, Wonza W Garolds v DHHS. Child Dev 
Cassandra Myers v Division of Child Development 
Theresa McCormick v DHHS. Division of Child Development 
DulatowTi Presbyterian Children Ctr v DHR, Child Development 
Dora's Child Development Center v Mecklenburg Cty DSS. and DHR 
Victory Day Care & Learning Ctr , Joe Walters v DHHS, Child Dev 
Four-County Community Services, Inc v Human Resources, Child Dev 
Kandy Kane Day School, Inc v DHHS, Div of Child Development 
Phoo Bear's DayCare, Sebrina Davis v Div of Child Development 
T/A Appletree Day Care, Inc , Carolyn J Driggers v DHHS, 

Division of Child Development 
Miriam E Cowan (LawTie) v Health & Human Svcs , Child Development 
Purcell W Hobbs v Youth and Family Svcs , Dept of Social Services 

Division of Facility Services 

Pearlie W Lawson v DHHS, Facility Svcs , Health Care Personnel Reg 
Annie K Morgan v Health & Human Services , Facility Ser\ices 
Mooresville Hospital Mgmt Associates, Inc d/b/a Lake Norman Regional 

Medical Center v DHR, Facility Services. Certificate of Need Section 
and 

Autumn Corporation and McKinley V Jumey 
Warren Moore & Catherine Moore v DHK Div of Facilitv' Services 
Constellation Health Ser\'ices, Inc and Constellation Senior Services, 

Inc v DHR. Facility Services. Group Care Licensure Section 
and 

Diversified Health Group. LLC and The Innovative Health Group. Inc 
Dialysis Care of NC. LLC. d/b/a Dialysis Care of Rowan County 

V DHR. Division of Facility Services. Certificate of Need Section 

V Biomedical Applications of NC. Inc d/b/a BMA of Kannapolis d/b/a 
Metrolina Kidney Center of Kannapolis (Lessee) and Metrolina Nephrology 
Associates. PA (Lessor) 

Robin Annette Reavis v Health and Human Svcs . Div of Facility Svcs 
Jennifer Blofeld v DHHS. Facilitv Svcs . Health Care Personnel Registn 
Sunlite Retirement Home. Winnie Jane Johnson v DHR. Facility Services 
Helen Shokoti \ Health and Human Services. Div of Facility Services 
Ann Davis Rest Home v Group Care Licensure Section 



CASE 




DATE OF 


PI BLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


98 DHR 0090 


Gray 


07/08/98 




98 DHR 0196 


Gray 


06/03/98 




98 DHR 0209 


Phipps 


07/15/98 




98 DHR 0369 


Owens 


08/17/98 




98 DHR 0471 


Owens 


04/15/99 




98 DHR 0666 


Reilly 


08/19/98 




98 DHR 0721 


Gray 


08/05/98 




98 DHR 0729 


Phipps 


09/09/98 




98 DHR 0780 


Owens 


07/28/98 




98 DHR 1047 


Smith 


02/25/99 




98 DHR 1097 


Smith 


01/13/99 




98 DHR 1118 


Gray 


10/26/98 




98 DHR 1134 


Chess 


01/07/99 




98 DHR 1 243 


Chess 


01/21/99 




98 DHR 1257 


Morrison 


12/11/98 




98 DHR 1259 


Smith 


11/30/98 




98 DHR 1287 


Chess 


11/19/98 




98 DHR 1288 


Chess 


04/06/99 




98 DHR 1340 


Gray 


12/21/98 




98 DHR 1350 


Reillv 


01/20/99 




98 DHR 1368 


Reilly 


01/29/99 




98 DHR 1423 


Reilly 


03/08/99 




98 DHR 1426 


Mann 


04/14/99 




98 DHR 1 565 


Reilly 


04/14/99 


13 22 NCR 1893 


98 DHR 1595 


Smith 


01/06/99 




98 DHR 1604 


Reilly 


02/09/99 




98 DHR 1689 


Reilly 


02/01/99 




98 DHR 1742 


Gray 


04/27/99 




98 DHR 1795 


Chess 


03/11/99 




99 DHR (3001 


Chess 


03/11/99 




99 DHR 0002 


Chess 


03/11/99 




99 DHR 0108 


Chess 


03/03/99 




99 DHR 0255 


Owens 


05/03/99 




99 DHR 0323 


Owens 


05/03/99 




98 DHR 0654 


Gray 


08/06/98 




98 DHR 0946 


Gray 


01/13/99 




98 DHR 0948 


Owens 


09/03/98 




98 DHR 0989 


Smith 


12/29/98 




98 DHR 1112 


Morrison 


10/16/98 




98 DHR 1184 


Phipps 


09/25/98 




98 DHR 1533 


Smith 


01/25/99 




98 DHR 1534 


Smith 


01/25/99 




98 DHR 1668 


Reilly 


02/24/99 




99 DHR 0008 


Chess 


04/13/99 




99 DHR 0058 


Morrison 


04/12/99 




99 DHR 01 82 


Owens 


03/16/99 




99 DHR 0333 


Owens 


04/29/99 




97 DHR 1034 


Becton 


07/30/98 




97 DHR 1046*" 


Phipps 


07/23/98 




97 DHR 1209 


Reilly 


06/23/98 





97 DHR 1279 
97 DHR 1529 



97 DHR 1588 



Mann 
Gray 



Phipps 



09/08/98 
06/24/98 



08/31/98 



< 



« 



97 DHR 1672 


Reilly 


08/12/98 


98 DHR 0096 


Gray 


08/21/98 


98 DHR 0124 


Phipps 


06/11/98 


98 DHR 01 73 


Chess 


08/26/98 


98 DHR 0197 


Phipps 


06/23/98 



k 



1957 



NORTH CAROLINA REGISTER 



June 1, 1999 



13:23 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
MMBER 



ALJ 



DATE OE 
DE( ISION 



PI BLISHED DEC ISIOX 
REGISTER CITATION 



Diane Lingard \ DUR. Facilin S\cs, Health Care Personnel Reg '^8 DHR 0214 Becton 

KimherK Annette Smith Hull V DHHS, Dnision otFacilit> Ser\iees 98 DHR 0239 Phipps 

Living Centers-Southeast, Inc . Lutheran Retirement Center-Wilimington, 98 DHR 0244*'' Phipps 

Ine . and Neu Hanover Health Care Center. L L C v DHHS. Div of 

Facilit\ Seniees- Certificate of Need Section, 
and 
Devin Partnership and Devm Health Care Associates, LLC. Columbia 

Cape Fear Healthcare .N^.siem. Limited Partnership. Living Centers 

Southeast. Inc . Lutheran Retirement Center-W'ilmington Inc . and 

New Hanover Health Care Center LLC 
Living Centers-Southeast. Inc . Lutheran Retirement Cenler-W'ilimmgton, 98 DHR 024.'i*'' Phipps 

Inc . and New Hanover Health Care Center. L L C v DHHS, Di\ of 

Facilm Services, Certificate of Need Section, 
and 
Devin Partnership and De\ in Health Care Associates. L L C . Columbia 

Cape Fear Healthcare System. Limited Partnership. Li\ ing Centers 

Southeast. Inc , Lutheran Retirement Center-Wilmington Inc , and 

New Hanover Health Care Center LLC 
Living Centers-Southeast, Inc , Lutheran Retirement Cemer-Wilimington. 98 DHR 0247*" Phipps 

Inc . and New Han.uer Health Care Center. L L C \ DHHS. Di\ of 

Facilit\ Services, Certificate of Need Section, 
and 
Devin Partnership and De\ in Health Care Associates. L L C . Columbia 

Cape Fear Healthcare Svstem. Limited Partnership. Living Centers 

Southeast, inc . Lutheran Retirement Center-Wilmington Inc , and 

New Hanover Health Care Center LLC 
Rose Mane Spencer v DHHS. Division of Facility Services 
Deborah Ann Holt v DHHS. Division of Facility Services 
Columbia Direct Mktg Corp v DHHS. Facility Svcs , Soltn Lie Br 
Tern Michelle Tvler \ Health & Human Svcs. Div of Facility Senices 
Dons Jones Holmes v DHHS, Facility Svcs, Health Care Personnel Reg 
Annie K Morgan v Health & Human Services , Facility Services 
Shirlev Bowling v DHHS. Facility Sen ices. Health Care Personnel Reg 
Johnnie E Williams v DHHS. Division of Facility Services 
Bio-Medical Applications of Lumberton, Inc d/b/a BM.A of Lumberton. 

d/h/a Lumberton DiaKsis Unit (Lessee) and Webb-Lohavichan Rentals 

(Lessor) v DHHS. Division of Facility Services. Certificate of Need Section 
and 

Hillchild. LLC and Dialysis Care of NC. LLC d/b/a DCNC. LLC 
Bio-Medical Applications of NC. Inc d/b/a Johnston Dialvsis Ctr v 98 DHR 0701 * 

DHHS. Division of Facility Services. Certificate of Need Section 
and 

Hillchild, LLC and Dialysis Care of NC, LLC d/b/a DCNC, LLC 
ChnstN' Jeton Hall v DHHS, Division of Facility Services 98 DHR 0706 

Hillchild, LLC and Dialysis CareofNC, LLC d/b/a DCNC, LLC v 98 DHR 0718* 

DHHS, Division of Facility Services, Certificate of Need Section 
and 

Bio-Medical Applications of Lumberton, Inc d/b/a BMA of Lumberton, 

d/b/a Lumberton Dialysis Unit (Lessee) & Webb-Lohavichan Rentals (Lessor) 



U6/22/98 
06/2 .V98 
11/24/98 



13 12 NCR 1018 



Reillv 



Gray 
Chess 



Hillchild, LLC and Dialysis Care of NC, LLC d/b/a DCNC, LLC \ 
DHHS, Division of Facility Services, Certificate of Need Section 

and 
Bio-Medical Applications of NC, Inc d/b/a Johnston Dialysis Ctr 
Judith Mav Gale \ DHHS, Division of Facility Services 
Evangeline McBride V DHR, Division of Facility Services 
Latonia Denise Thomas v DHHS. Division of Facility Services 
Tracev Deirde Galloway v DHHS, Facility Svcs , Health Care Per Reg 
.M'l Teawanda Byrd v DHHS. Division of Facility Services 
Happv Dan's Home. Gladvs Cooke v Facility Svcs . Group Care Lie Sect 
Wanda Best v Division of Facility Services. DHHS 
Tracev ^elverton \ DHHS. Division of Facility Services 
Rose Mane Hadley v DHHS. Division of Facility Services 
Robena Juanita Jones \ DHHS. Division of Facility Services 
Mona Lisa Lucas v DHHS. Division of Facility Services 
Edna Weaver Sawver v DHHS. Division of Facility Services 
Linda Estes Richardson \ DHHS. Division of Facility Services 
Shirley L Smith, a/k/a Shirley Lee Turner v DHHS. Facility Sen ices 
Jeanene Crandal Williams v Health & Human Senices. Facility Senices 
Felicia Ozoms V DHHS. Division of Facility Senices 
Carolyn Grant v Health & Human Sen ices. Facility Sen ices 
Bndgette Tavlor v Nurse .^ide I Program. DFS 
Jamie Jamigan Oaks v DHHS. Division of Facility Senices 
Barbara Davis v DHHS. Division of Facilitv Senices 
Jamila Adukeipe Alahali v Health & Human Senices. Facilitv Senices 



98 DHR 07 19* 



Reilly 



11/24/98 



11/24/98 



98 DHR 0279 


Chess 


01/07/99 


98 DHR 0348 


Phipps 


06/22/98 


98 DHR 0394 


Morrison 


12/31/98 


98 DHR 0458 


Grav 


08/21/98 


98 DHR 0463 


Gray 


08/21/98 


98 DHR 0496*' 


Phipps 


07/23/98 


98 DHR 0547 


Grav 


11/09/98 


98 DHR 0639 


Reillv 


07/02/98 


98 DHR 0700*-' 


Chess 


02/04/99 



02/01/99 



10/12/98 
02/04/99 



02/01/99 



98 DHR 0739 


Owens 


12/16/98 


98 DHR 0767 


Chess 


03/04/99 


98 DHR 0809 


Grav 


10/23/98 


98 DHR 0824 


Grav 


09/24/98 


98 DHR 0838 


Reillv 


12/29/98 


98 DHR 0885 


Owens 


11/19/98 


98 DHR 0936 


Chess 


01/11/99 


98 DHR 0955 


Owens 


01/04/99 


98 DHR 0970 


Smith 


10/08/98 


98 DHR 1089 


Gray 


1 2/29/98 


98 DHR 1110 


Grav 


01/04/99 


98 DHR 1 1 1 1 


Grav 


01/04/99 


98 DHR 1131 


Chess 


01/07/99 


98 DHR 1132 


Chess 


01/07/99 


98 DHR 1133 


Morrison 


02/18/99 


98 DHR 1 1 73 


Grav 


01/20/99 


98 DHR 1264 


Owens 


02/15/99 


98 DHR 1283 


Mann 


12/14/98 


98 DHR 1284 


Smith 


01/12/99 


98 DHR 1317 


Grav 


12/21/98 


98 DHR 1326 


Wade 


02/16/99 



13.12 NCR 1018 



13 12 NCR 1018 



13:23 



NORTH CAROLINA REGISTER 



June /, 1999 



1958 



iiip^niiiifrminiiiiiii iiTnniniTTfiinM'in 



»mKK>j.^r^. . -.^^^am. 



imi 



CONTESTED CASE DECISIONS 



AGENO 

Doroth> Rea Fisher v Health & Human Serv ices. Facility Services 
April F Matthews \ Health & Human Ser\ices. Facility Services 
Virgie Harshau Stinson v Health Care Personnel Registry 
Valerie Ann Hernandez v DHHS, Division of Facility Services 
Wanda Ann Cribb v DHHS, Division of Facility Services 
Bertha Stinson Flail v DHHS, Division of Facility Services 

Division of Medical Assistance 

Charlotte-Mecklenburg Hospital Authority, d/b/a Carolinas Medical Ctr, 
and Flarry Mahannah, M D v DHHS. Division of Medical Assistance 
Isaiah Smith. Jr. by/through his Guardian, LawTence E Thompson, III 

V DHHS. Division of Medical Assistance 
William M Bell,,lr v DHHS, Medical Assistance, Third Party Rec Sec 
Alic F Schneider, Julia R Hammonds v DHHS, Medical Assistance 
April Dawn Bass v DHHS, Division of Medical Assistance 
Candyce Ewanda Nevvsome v Tarheel Consultant. Cherry Hospital. 
Sunrise Health Care Center (Div of Medical Assistance! 

Division of Social Services 

William & Crystal Steakley v DHHS, Division of Social Services 
Raji Abdus-Salaam v Department of Human Resources, DSS-DCA 

Child Support Enforcement Section 
William Robert Cameron v Department of Human Resources 
Robert H Black v Guilford County Child Support Enforcement 
Dorman E Drake v Department of Human Resources 
Gany R McNeill v Department of Human Resources 
Robert Alan Davis v Department of Human Resources 
Michael W White \ Department of Human Resources 
Troy R Emmons, Jr v Department of Human Resources 
Marvin A Pike v Department of Human Resources 
Richard L Garver. Jr v DHR, Div of Social Services 
Marv Putnam Avery v DSS, Durham County Child Support Enforcement 
Anthony B GntTm v Department of Human Resources 
Gilbert G Gray v Department of Human Resources 
Jimmy Dorsey v Department of Human Resources 
Herbert Leon Sellers v Department of Human Resources 
Gregory Boren \ Department of Human Resources 
David W Da\is v Department of Human Resources 
Dale W Hutchinson v Department of Human Resources 
Kelvin Cherry v Department of Human Resources 
Joe A Lynch v Department of Human Resources 
Gary W Wampler v Department of Human Resources 
Kenneth Bryan Haynes v Department of Human Resources 
Kenneth Eugene Scott v Department of Human Resources 
Mark Owens Frink v Department of Human Resources 
Jeffery Lee Graves v Department of Human Resources 
Donald L Carr, Jr v Department of Human Resources 
Marvin Diggs v Department of Human Resources 
Michael Patrick Dyme v Department of Health & Human Services 
Paula C Freeman v Department of Health & Human Services 
Sherman L Arnold Sr \ Department of Health & Human Services 
Clifton Pierce v Department of Health & Human Services 
Dennis Lee McNeill \ Department of Human Resources 
Byron O Ashby II v Department of Human Resources 
Hubert L Morrison v Department of Human Resources 
Wayne L Weeks v Department of Human Resources 
Robert Alan Davis v Department of Human Resources 
Larry S Robinson v Child Support Enforcement Agency 
Darryl C Thompson v Department of Health & Human Services 
Darryl C Thompson v Department of Health & Human Services 
Michael J Burgess v Department of Human Resources 
Michael Anthony Hill v Department of Human Resources 
Joseph L Hill V Department of Human Resources 
Michael A Wilder v Department of Human Resources 
BilK Anthony Jr v Department of Human Resources 
James B Benson \ Department of Human Resources 
Lawrence Wilkes v Department of Human Resources 
Alton D Bagley v Department of Human Resources 
Bemel B Berry Jr v Department of Human Resources 
Darryl Simpkins v Department of Health & Human Services 
Anthony Montgomery \ Department of Human Resources 
Temace Joan Ness v Department of Human Resources 
Joseph Gerard McPhillips v Department of Human Resources 



CASE 




DATE OK 


PI BUSHED DECISION 


MMBER 


ALJ 


DECISION 


REGISTER CITATION 


98 DHR 1349 


Wade 


03/02/99 




98 DHR 1691 


Owens 


03/01/99 




98 DHR 1692 


Gray 


02/10/99 




99 DHR 0088 


Phipps 


03/16/99 




99 DHR 0109 


Morrison 


03/26/99 




99 DHR 01 53 


Morrison 


04/16/99 




97 DHR 062 1 


Smith 


07/08/98 




98 DHR 0273 


Gray 


12/07/98 




98 DHR 0979 


Mann 


01/13/99 


13 16 NCR 1366 


98 DHR 0994 


Morrison 


1 0/29/98 




98 DHR 1687 


Mann 


01/14/99 




99 DHR 00 13 


Wade 


03/30/99 




98 DHR 0076 


Gray 


07/20/98 




98 DHR 0771 


Owens 


07/30/98 




96CRA 1525 


Gray 


01/11/99 




96CRA 1548 


Mann 


10/09/98 




96CRA 1717 


Smith 


08/25/98 




96 CRA 1 743 


Reilly 


10/22/98 




96CRA 1781*" 


Phipps 


08/20/98 




96 CRA 1784 


Gra\ 


09/25/98 




96 CRA 1798 


Reilly 


08/25/98 




96 CRA 1814 


Chess 


09/24/98 




96 CRA 1823 


Mortison 


04/23/99 




96 CRA 1849 


Mortison 


09/01/98 




96 CRA 1855 


Grav 


12/18/98 




96 CRA 1 858 


Morrison 


1 0/08/98 




96 CRA 1862 


Smith 


12/15/98 




96 CRA 1932 


Smith 


11/06/98 




96 CRA 1 945 


Gray 


12/14/98 




96 CRA 1976 


Smith 


11/06/98 




96 CRA 1981 


Mann 


08/26/98 




97 CRA 0026 


Gray 


12/14/98 




97 CRA 0045 


Phipps 


10/09/98 




97 CRA 01 87 


Smith 


12/15/98 




97 CRA 0444 


Mann 


02/19/99 




97 CRA 1232 


Chess 


11/06/98 




97 CRA 1524 


Mann 


10/09/98 




98 CRA 0137 


Becton 


06/23/98 




98 CRA 0545 


Reilly 


06/08/98 




98 CRA 0588 


Reilly 


06/24/98 




98 CRA 0787 


Gray 


09/17/98 




98 CRA 1117 


Smith 


12/18/98 




98 CRA 1152 


Mann 


10/28/98 




98 CRA 1430 


Smith 


01/11/99 




96CSE 1305 


Gray 


06/22/98 




96CSE 1435 


Mann 


07/15/98 




96CSE 1649 


Reilly 


08/12/98 




96CSE 1777 


Gray 


04/30/99 




96CSE1780*' 


Phipps 


08/20/98 




96CSE1848 


Gray 


11/0.5/98 




96CSE1854*" 


Chess 


09/01/98 




96CSE 1902*" 


Chess 


09/01/98 




96CSE 1989 


Mann 


12/10/98 




96 CSE 2028 


Mann 


08/26/98 




97 CSE 0624 


Chess 


11/06/98 




97 CSE 1301 


Chess 


07/17/98 




97 CSE 1393 


Reilly 


06/24/98 




97 CSE 1399 


Gray 


12/14/98 




97 CSE 1419 


Grav 


11/17/98 




97 CSE 1424 


Chess 


06/02/98 




97 CSE 1435 


Smith 


06/12/98 




97 CSE 1436 


Chess 


08/11/98 




97 CSE 1442 


Phipps 


06/17/98 




97 CSE 14.50 


Morrison 


12/09/98 




97 CSE 1467 


Mann 


10/09/98 





< 



« 



1959 



NORTH CAROLINA REGISTER 



June /, 1999 



13:23 



CONTESTED CASE DECISIONS 



AGEX V 



CASE 
NIMBER 



ALJ 



DATE OF 
DEC ISION 



PI BLISHEDDEC ISION 
REGISTER ( MAITON 



Terrv Letterman \ Depanment of Human Resources 97CSEI492 Smith 

Kenneth Pabers \ Department of Human Resources 97CSEI523 Mann 

WilhamE Mmes \ Department of Human Resources 97CSEI527 Mann 

Christopher Alan \ Department of Human Resources 97CSEI544 Chess 

Annette Chipman V Department of Human Resources 97CSE1545 Phipps 

Paul J Moble\,Jr\ Department ol Human Resources 97CSE1568 Phipps 

Alvm G Piper V Department of Heahh & Human Services 97CSE1599 Phipps 

Robert A Sherer v Department of Human Resources 97CSE1605 Mann 

Rodne\ A Morrison \ Department ol Human Resources 97CSE1611 Gray 

Gregors Andre Broun \ Department of Health & Human Services 97CSEI656 Gray 

Rodger Hazen II \ Department of Human Resources 97CSE1666 Chess 

Marion Amett V Department of Human Resources 97CSEI685 Mann 

Wade A Burgess v Department of Human Resources 98 CSE 007 1 Morrison 

Robert L Robinson v Department of Human Resources 98 CSE 0130 Reilly 

Michael William Fisher V Department of Human Resources 98 CSE 0198 Mann 

Jamie A Hurtt \ Department of Health & Human SerMces 98 CSE 0307 Morrison 

Renardo Jenkins \ Department of Human Resources 98 CSE 0310 Smith 

Anthony Love V Department of Human Resources 98 CSE 0312 Phipps 

Eric Baldwin V Department of Health it Human Services 98 CSE 0319 Phipps 

Eddie R Steward v Department of Health & Human Ser\ ices 98 CSE 0320 Morrison 

Steven Kent Gold v Department of Human Resources 98 CSE 0333 Morrison 

Leroy J Poole \ Department of Human Resources 98 CSE 0375 Reilly 

Hoyal A McLean \ Department of Health & Human Ser\ ices 98 CSE 0420 Smith 

Michael Bernard Hill \ Department of Health & Human Sen ices 98 CSE 0421 Becton 

Terrs M Cable v Department of Human Resources 98 CSE 0433 Phipps 

Charlie RathlTJr v Department of Health & Human Services 98 CSE 0449 Mann 

Donald W Lee v Department of Health & Human Serv ices 98 CSE 0469 Gray 

BobbvD Cookv Department of Health & Human Services 98 CSE 0483 Reilly 

John B Hall \ Department of Human Resources 98 CSE 0506 Chess 

Derrick A Brinton \ Department of Human Resources 98 CSE 0555 Smith 

Tabatha D Pate \ Department of Human Resources 98 CSE 0556 Becton 

Amanda F Blount V Department of Human Resources 98 CSE 0560 Chess 

Gregory Cartyl IV # I 5fi4206)v Department of Human Resources 98 CSE 0561*" Phipps 

Gregory Carry (IV # I -'14166) V Department of Human Resources 98 CSE 0562*'"' Phipps 

John L Bullard V Department of Human Resources 98 CSE 0569 Mortison 

Frank A Cotton v Department of Human Resources 98 CSE 0578 Gra\ 

Charlie Gray Hunt Jr \ Department of Human Resources 98 CSE 0607 Smith 

Keith D & Lydia C Wright \ Department of Health & Human Services 98 CSE 0621 Smith 

Willie R Cruse V Department of Health & Human Services 98 CSE 0653 Mann 

Thomas H Lotze, Jr v Department of Health & Human Services 98 CSE 0658 Phipps 

Robert L Williams V Department of Human Resources 98 CSE 0682 Smith 

Patrick Bass V Department of Health & Human Services 98 CSE 0689 Owens 

Tawanna Wheeler V Department of Health & Human Services 98 CSE 0691 Owens 

Timothy Kinnev V Department of Health & Human Sen ices 98 CSE 0728 Smith 

Teresa L Galloway v Department of Health & Human Services 98 CSE 0769 Becton 

Michael A Looper v Department of Health & Human Services 98 CSE 0783 Chess 

Kenneth E Strtckland v Department of Health & Human Services 98 CSE 081 7 Mann 

HovT H Bunt Jr V Department of Health & Human Services 98 CSE 0818 Mortison 

Vernon Reginald Pinkney V Department of Health & Human Sen'ices 98 CSE 0833 Owens 

Elijah G Deans V Department of Health & Human Services 98 CSE 0867 Phipps 

James Howard Alexander V Department of Health & Human Services 98 CSE 0869 Reilly 

Lee J Coggms \ Department of Human Resources 98 CSE 0894 Smith 

Mark J Houibrook V Department of Health & Human Sen, ices 98 CSE 0949 Smith 

Henry A Hamel, Jr v Department of Health & Human Services 98 CSE 0975 Chess 

Amanda F Haviland Blount \ Department of Health & Human Services 98 CSE 0985 Mann 

Deniira JefTries v Department of Health & Human Services 98 CSE 1036 Morrison 

Bryan L Barksdale v Department of Health & Human Services 98 CSE 1052 Morrison 

Cleatus Dean Cuthbertson V Department of Human Resources 98 CSE 1072*'* Phipps 

Cleatus Dean Cuthbertson v Department of Human Resources 98 CSE 1073*'* Phipps 

Karen Mitchell V Department of Human Resources 98 CSE 1095 Reillv 

Roberts Willen \ Department of Health & Human Services 98 CSE 1153 Chess 

Judi Devlin V Department of Health & Human Services 98CSE1I77 Gray 

Issac L Huey V Department of Health & Human Services 98 CSE 1301 Owens 

Curtis T Brown v Department of Health & Human Services 98 CSE 1311 Phipps 

Rafael L Garcia V Department of Human Resources 98 CSE 1353 Reillv 

David Chisolm v Department of Human Resources 98 CSE 1369 Smith 

Robert McKov v Department of Health & Human Services 98 CSE 1371 Chess 

Marc R McGahee \ Department of Human Resources 98 CSE 1381 Grav 

Solomon Freeman V Department of Human Resources 98 CSE 1389 Mortison 

Bill G Seamans v Scotland Cty Child Sup Enf -Scotland County DSS 98 CSE 1391 Phipps 

Nelson Lee Allen V Department of Human Resources 98 CSE 1407 Smith 

Michael Jeflerson V Department of Health & Human Services 98 CSE 1408 Chess 

Keith Jerome Greene Jr V Department of Human Resources 98 CSE 1417 Grav 

Derrick M Mallety v Department of Human Resources 98 CSE 1420 Mortison 



06/22/98 
02/19/99 
09/08/98 
10/16/98 
07/23/98 
06/17/98 
11/10/98 
07/15/98 
10/23/98 
08/27/98 
07/17/98 
12/10/98 
06/12/98 
07/15/98 
02/19/99 
07/06/98 
06/23/98 
06/23/98 
12/15/98 
02/02/99 
07/01/98 
07/02/98 
07/29/98 
07/15/98 
12/09/98 
07/15/98 
11/09/98 
10/06/98 
07/20/98 
08/07/98 
06/23/98 
07/29/98 
09/23/98 
09/23/98 
08/06/98 
10/08/98 
06/22/98 
02/15/99 
08/26/98 
08/31/98 
06/22/98 
09/18/98 
10/09/98 
09/17/98 
07/30/98 
09/08/98 
09/08/98 
09/15/98 
07/29/98 
07/20/98 
08/06/98 
08/20/98 
09/08/98 
09/01/98 
11/18/98 
09/15/98 
10/09/98 
01/21/99 
01/21/99 
10/06/98 
11/19/98 
12/29/98 
12/11/98 
01/22/99 
01/22/99 
01/22/99 
02/08/99 
02/01/99 
02/01/99 
12/09/98 
02/24/99 
01/19/99 
02/10/99 
02/01/99 



13:23 



NORTH CAROLINA REGISTER 



June 7, 1999 



1960 



nui;uBuiuu!uiuj 



afMKt^ftKW^.i^^^^^jjjraB 



CONTESTED CASE DECISIONS 



AGENCY 

David W Autn' v Department ot Human Resources 

Cleveland Tem v Department of Human Resources 

Tony Mitchell Guion v Department of Health & Human Services 

David Kenneth Kilgore Sr v Department of Human Resources 

Curtis M Threatt v Department of Health & Human Services 

Tem L Dedie v Department of Human Resources 

Michael Lashawn Mclaurin v Department of Human Resources 

Stephen Alex v Department of Health & Human Services 

Jeffrey Navares v Department of Human Resources 

Rex Eugene Bamett v Department of Human Resources 

Larry C William v Department of Health & Human Ser\ ices 

Joseph R Engelbrecht v Department of Health & Human Services 

Antonio M Townsend v Department of Health & Human Services 

Sammy Ray Smith v Department of Health & Human Services 

Karlos M Gregory v Department of Human Resources 

Marvin C Upchurch v Department of Human Resources 

Vince E Green v Department of Human Resources 

Mark Steven Goodwin v Department of Human Resources 

Erick A L White v Department of Human Resources 

William R Cameron v Department of Human Resources 

Dennis M McDonald v Department of Human Resources 

James Otis Masters v Department of Human Resources 

Paul R Simon v Department of Human Resources 

Vandi Feika v Department of Health & Human Services 

Barnard Jordan v Department of Human Resources 

Milton Jerome McNeil v Department of Human Resources 

Grady Harold Reasor v Department of Human Resources 

Alejo J Heller V Department of Human Resources 

Kenneth J Currie v Department of Human Resources 

Ronnie F Davis v Department of Health & Human Services 

Paul Monroe Covington v Department of Health & Human Sei^ices 

Vernon Reginald Pinkney v Department of Health & Human Services 

Eugene B Patton III v Department of Human Resources 

Thomas Graham, Jr v Department of Health & Human Services 

Gerry Gant v Department of Human Resources 

Douglas L Law v Department of Human Resources 

Prentice P Lucas v Department of Human Resources 

Glenn R Pease v Department of Human Resources 

Vernon Mclver v Department of Human Resources 

Gerald Pendergrass \ Department of Human Resources 

Terain Bordley v Department of Human Resources 

James Calvin Price Jr v Department of Human Resources 

Leon McNair v Department of Human Resources 

Marvin Lee v Department of Human Resources 

Harolds Fairbank v Department of Human Resources 

Harry C RorieJr v Department of Human Resources 

Cesar A. Hernandez v Department of Health & Human Services 

Clarence Evans v Department of Human Resources 

Carlton J Hicks v Department of Human Resources 

Ronald E Davis Jr v Department of Human Resources 

Demetrius D Brooks v Department of Human Resources 

Jeffery John Bissonnette v Department of Health & Human Services 

Clarence A Edens. Jr v Department of Health & Human Sers'ices 

David Jones. Jr v Department of Human Resources 

Douglas Sanders v Department of Human Resources 

Linton A Durante v Department of Human Resources 

Travis Lamont Stevenson v Department of Human Resources 

Edward T Stanley v Department of Human Resources 

Jada Ballard v Department of Human Resources 

Reginald Mclver v Department of Human Resources 

Timothv F Arnold, Sr \ Depanment of Human Resources 

Michael Doran Horton v Department of Human Resources 

Mia Mansa Gionzales-Sisk v Department of Human Resources 

Kenneth Alan Newman v Department of Human Resources 

Donald L Carr, Jr v Department of Human Resources 

Hughey F Poppell v Department of Human Resources 

James Edward Covington v Depanment of Human Resources 

Claude A Mayse v Department of Human Resources 

Terain Bordley v Department of Human Resources 

Qua' Aaron Rich v Department of Human Resources 

Guy Anthony Kelly v Department of Human Resources 

Robert E L Heck v Department of Health & Human Services 

Sandra Ferrell v Department of Health & Human Services 

Bobby L Mills v Department of Human Resources 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


98CSE 1422 


Owens 


03/03/99 


98CSE1424 


Phipps 


01/14/99 


98CSE 1434 


Chess 


12/28/98 


98CSE 1444 


Ov\ens 


03/29/99 


98CSE 1447 


Phipps 


12/18/98 


98CSE1458 


Smith 


01/19/99 


98CSE1459 


Mann 


02/19/99 


98CSE1460 


Chess 


04/07/99 


98CSE 1461 


Gray 


02/10/99 


98CSE1467 


Mann 


04/28/99 


98CSE 1469 


Mortison 


02/09/99 


98CSE 1472 


Owens 


01/05/99 


98CSE 1473 


Phipps 


01/14/99 


98CSEI474 


Reilly 


12/18/98 


98CSE 1507 


Smith 


02/09/99 


98CSE 1508 


Mann 


01/26/99 


98CSE 1509 


Chess 


02/01/99 


98CSE 1510 


Gray 


02/10/99 


9gCSE 1511 


Mann 


02/19/99 


98CSE 1512 


Gray 


01/25/99 


98CSE1513 


Morrison 


01/26/99 


98CSE 1514 


Owens 


02/09/99 


98CSE 1515 


Phipps 


02/09/99 


98CSE1516 


Reilly 


03/02/99 


98CSE 1517 


Smith 


02/12/99 


98CSE15I8 


Mann 


02/19/99 


98CSE 1519 


Chess 


02/01/99 


98CSE 1520 


Gray 


02/10/99 


98CSE 1521 


Mann 


02/19/99 


98CSE 1523 


Owens 


12/29/98 


98CSE 1524 


Phipps 


02/09/99 


98CSE 1547 


Reilly 


02/19/99 


98CSE1548 


Smith 


01/26/99 


98CSE1550 


Chess 


03/03/99 


98CSE1551 


Gray 


03/26/99 


98CSE 1552 


Mann 


02/19/99 


98CSE 1553 


Morrison 


04/20/99 


98CSE1554 


Owens 


04/23/99 


98CSE1559 


Reilly 


02/19/99 


98CSE 1570 


Gray 


01/22/99 


98CSE1571 


Mann 


02/19/99 


98CSE1572 


Morrison 


02/18/99 


98CSE1573 


Ov\ens 


02/11/99 


98CSE1574 


Phipps 


02/19/99 


98CSE1575 


Reilly 


02/19/99 


98CSE 1576 


Smith 


01/25/99 


98CSE 1580 


Mann 


01/13/99 


98CSE1584 


Gray 


03/26/99 


98CSE1587 


Owens 


02/25/99 


98CSE1589 


Reilly 


01/26/99 


98CSE1590 


Gray 


03/18/99 


98CSE 1591 


Mann 


03/01/99 


98CSE1602 


Chess 


03/03/99 


98CSE 1605 


Gray 


03/18/99 


98CSE 1606 


Mann 


01/26/99 


98CSE1608 


Owens 


03/26/99 


98CSE1609 


Phipps 


01/28/99 


98CSE1610 


Reilly 


03/02/99 


98CSE1614 


Gray 


02/10/99 


98CSE1629 


Morrison 


02/11/99 


98CSE 1630 


Owens 


03/03/99 


98CSE1631 


Phipps 


03/05/99 


98CSE 1632 


Reilly 


02/02/99 


98CSE 1633 


Grav 


04/06/99 


98CSE1636 


Reilly 


03/26/99 


98CSE 1637 


Gray 


03/1 8/99 


98CSE 1639 


Mortison 


03/18/99 


98CSE 1642 


Owens 


03/03/99 


98CSE 1643 


Phipps 


03/05/99 


98CSE1651 


Smith 


02/24/99 


98CSE1652 


Mann 


03/16/99 


98CSE1660 


Gray 


02/10/99 


98CSE1661 


Mann 


03/01/99 


98CSE1663 


Mann 


01/20/99 



PIBLISHED DECISION 
REGISTER CITATION 



< 



1961 



NORTH CAROLINA REGISTER 



June 1, 1999 



13:23 



CONTESTED CASE DECISIONS 



AGE>("N 

Victor Cortez McLendon v Department of Human Resources 

Datris Nathanael Biagas \ Department ot Human Resources 

Anthonv McRae v Department of Human Resources 

Dennis Warren E\erson \ Department ot Health & Human Services 

Phillip L king V Department of Health & Human Services 

Albertus Shau \ Department olUcalth & Human Ser\ices 

Charles Anthony Jacobs \ Department of Human Resources 

Johnns Richardson \ Department of Human Resources 

Willie M Cornelius \ Department of Human Resources 

Timoth> Andre McPhaul \ Department ol Health & Human Services 

Juan V Perkins v Department of Health & Human Services 

James R Upchurch \ Department of Health & Human SeT\'ices 

Stephenson Veasy \ Department of Health & Human Services 

James H Peedm 111 v Department ol Health & Human Ser\'ices 

Jaqueline R Graham v Department of Health & Human Senices 

Patricia Chambers v Department of Human Resources 

Vickie E Lane V Michael L Adams. Department of Human Resources 

Carla P Robinson v Department of Human Resources 

Rachel D Farmer v Department of Health & Human Services 

Janice Scott Padgett (Fisher) \ Department of Human Resources 

Barbara Fanta-Blandine \ Department of Human Resources 

Sharon Brim \ Department of Health & Human Services 

Karen White \ Department of Human Resources 

Sherrv L Hamptons Department of Human Resources 

Terita M Sharpe \ Department of Hum. m Resources 

Sherisse Stancel Kelly \ Department of Human Resources 

Melanie D Nickerson v Department of Health & Human Services 

Ruth McFadden v Department of Human Resources 

Linda Michelle Jennings v Department of Health & Human Services 

Sheila D Cobh v Department of Health & Human Ser\ ices 

Hattie L Pearson v Department of Health & Human Services 

Hartiet Gavie Stancill v Department of Health & Human Services 

Division of Women 's and Children 's Health 

khamis A Sirhan v DHHS. Women's/Children's Health. Nutrition Svcs 
Joseph A Nauas v DHHS. Women's/Children's Health. Nutrition Svcs 
Mohamad 1 Rahman v DHHS. Womens/Childrens Hlth. Nutr Svcs Sect 
Evelyn Powell \ Nutrition Services Section 

HIMAN RELATIONS COMMISSION 

NC Human Relations Comm Ex Rel Clarice Dial v Dixie Lee Newsome. 

Jetti Lee. Jackie Lee and Ervvm Judd 
Orange Co Human Relations Comm on behalf of Amy Sinderman v 

American Board of Pediatrics 



CASE 




DATE OF 


PIBLISHED DECISION 


NIMBER 


Al.) 


DEdSION 


REGISTER CITATION 


98CSE 1664 


Morrison 


03/04/99 




98CSE 1681 


Phipps 


03/17/99 




Q8CSE 16S; 


Reilly 


02/09/99 




98CSE 1683 


Smith 


02/11/99 




98CSE 1684 


Mann 


03/16/99 




98CSE 1701 


Morrison 


01/05/99 




98CSE 1714 


Phipps 


01/19/99 




98CSE1731 


Smith 


02/02/99 




98 CSE 1 736 


Mann 


04/28/99 




98CSE1739 


Mann 


04/28/99 




98 CSE 1802 


ReilK 


05/03/99 




99 CSE 0103 


Gray 


03/26/99 




99 CSE 0132 


Mortison 


04/26/99 




99 CSE 0224 


Mann 


04/28/99 




99 CSE 0274 


Phipps 


04/29/99 




96 DCS 1 944 


Mann 


01/26/99 




96 DCS 2105 


Gray 


07/08/98 




97 DCS 0124 


Reilly 


11/10/98 




97 DCS 025 1 


Phipps 


08/31/98 




97 DCS 1219 


Smith 


07/29/98 




97 DCS I486 


Mortison 


06/22/98 




97 DCS 1 574 


Gray 


08/04/98 




98 DCS 0053 


Chess 


12/14/98 




98 DCS 0257 


Morrison 


12/01/98 




98 DCS 0468 


Morrison 


06/09/98 




98 DCS 0508 


Mann 


12/16/98 




98 DCS 0593 


Gray 


01/19/99 




98 DCS 0675 


Reilly 


07/15/98 




99 DCS 0033 


Grav 


03/18/99 




99 DCS 02 13 


Reillv 


05/03/99 




99 DCS 0256 


Ouens 


05/03/99 




99 DCS 0309 


Phipps 


04/29/99 




98DHR02I9 


Reilly 


08/11/98 




98 DHR 0637 


Phipps 


07/02/98 




98 DHR 0923 


Chess 


11/06/98 




98 DHR 1135 


Smith 


11/13/98 




98HRC1063 


Smith 


01/21/99 


13 16NCR 1369 


98HRC 1641 


Chess 


04/19/99 





JISTICE 

James Todd Tippet ' 



NC Company Police Program 



Alarm Systems Licensing Board 

Claude David Huggins \ Alarm Systems Licensing Board 
Jay Michael Ratcliffv Alarm Systems Licensing Board 
Robert Derek Ross v Alarm Systems Licensing Board 
Randy Keith Bart v Alarm Systems Licensing Board 
Barry D Lyman v Alarm Systems Licensing Board 

Auctioneer Licensing Board 

Wiley R Tyndall v Auctioneer Licensing Board 
Russ J Scherter v Auctioneer Licensing Board 
Gavin Haviv Abadi \ Auctioneer Licensing Board 
Marty C McDaniel v Auctioneer Licensing Board 

Education and Training Standards Division 

Thomas Dwayne Broun v Sheriflfs' Education & Training Stds Comm 
Kenneth Joseph Jackson v SheritTs' Education & Training Stds Comm 
Odis Fitzgerald Darden \ Sherifi's' Education & Training Standards Comm 
Hoyle Kenneth Wise. Jr \ Sheriffs' Education & Training Stds Comm 
Kenneth Earl Brantley v Criminal Justice Ed & Training Stds Comm 
Hearl Oxendine v Criminal Justice Education & Training Stds Comm 
James Farrell Roberts v Criminal Justice Ed & Training Stds Comm 
Phillip Keith McPherson v Sheriffs' Ed & Training Standards Comm 
Gary Alan Williams v Sheriffs' Ed & Training Standards Comm 
Daryl LaMar Bryant \ Sheriffs' Education & Training Standards Comm 
Harold F Esters v SheritTs' Education & Training Standards Comm 
William Scott Kev v Shenffs' Education & Training Standards Comm 



97DOJ 1368 


Phipps 


98DOJ087I 


Mortison 


98DOJ 1345 


Ouens 


98DOJ 1494 


Mortison 


98DOJ 1495 


Smith 


98DOJ 1496 


Smith 


97DOJ 1236 


Phipps 


98 DOJ 0589 


Ov\ens 


98DOJ 1060 


Smith 


98 DOJ 1527 


Owens 


97 DOJ 1319 


Phipps 


97 DOJ 1578'" 


Grav 


97 DOJ 1698 


Reillv 


98 DOJ 0022 


Smith 


98 DOJ 0046 


Grav 


98 DOJ 0121 


Smith 


98 DOJ 0147 


Smith 


98 DOJ 0388 


Reillv 


98 DOJ 0389 


Phipps 


98 DOJ 0430 


Grav 


98 DOJ 0431 


Grav 


98 DOJ 0432 


Becton 



09/10/98 



07/09/98 
11/19/98 
12/10/98 
02/05/99 
12/16/98 



07/24/98 
03/08/99 
10/21/98 
03/29/99 



07/29/98 
08/20/98 
06/12/98 
07/14/98 
11/04/98 
06/22/98 
07/16/98 
07/24/98 
04/05/99 
07/21/98 
08/21/98 
06/08/98 



13 II NCR 935 



13:23 



NORTH CAROLINA REGISTER 



June I, 1999 



1962 



RVUWUWVHffiffieifE 



j,^HK,4MtW^. ^w^^«^w» 



CONTESTED CASE DECISIONS 



AGENCY 

Cecil W Duke. Jr v Criminal Justice Education & Training Stds Comm 
Marvin Shemel Clark v Department of Correction 
and 
Mar\ in S Clark v Criminal Justice Ed & Training Stds Comm 
Amado Martinez v Criminal Justice Education & Training Stds Comm 
Johnny Wa\ne Wills v Criminal Justice Education & Training Stds Comm 
James E Ellerbe v Sheriffs' Education & Training Standards Comm 
Paul Haney Taylor v DOJ. Criminal Justice Ed & Training Stds Comm 
Kenneth Joseph Jackson v ShentTs' Ed & Training Standards Comm 
Kelly Suzanne Mayberry v Sheriffs' Education & Training Stds Comm 
Sharon Da\ Herring v Sheriffs' Education & Training Stds Comm 
Robert Ryan Hardison \ ShentTs' Education & Training Standards Comm 
Traces Jerome Clark v Sheriffs Education & Training Standards Comm 
Berry Bernard Baker v Criminal Justice Ed & Training Standards Comm 
Evelyn D Brown \ Sheriffs' Education & Training Stds Comm 
Kevin Lamar Dorsey v ShentTs' Education & Training Standards Comm 
Richard Alan McEntire v Criminal Justice Ed & Training Stds Comm 
Willoughby McCormick, Jr V Sheriffs' Ed & Training Standards Comm 
Herman Lee Colvin v Shenffs' Ed & Training Standards Comm 
William Edward Smith. Jr v Criminal Justice Ed & Tmg Stds Comm 
Ronald Hosea Hodge v Cnminal Justice Ed & Training Standards Comm 
Meh in Garfield Smith v Criminal Justice Ed & Training Stds Comm 
Paul Haney Taylor v Criminal Justice Ed & Training Stds Comm 
Teresa Shaundell Hunt \ Criminal Justice Ed & Training Stds Comm 
Michael Patrick Minter v Criminal Justice Ed & Training Stds Comm 
Phillip K McPherson v ShentTs' Education & Training Standards Comm 
Leonard Patterson Limer \ Sheriffs' Education & Training Stds Comm 
Frankie Arlene Fisher v Shenffs' Ed & Training Standards Comm 
Floyd Lee Hatch v Criminal Justice Ed & Training Stds Comm 
Arthur Bivens v ShentTs' Ed & Training Standards Commission 
Paul Dennis Plante v Shenffs' Ed & Training Standards Commission 
Benjamin Albert Williams v Criminal Justice Ed & Tr Stds Comm 
Carroll Edwin Swain. Jr v Criminal Justice Ed & Training Stds Comm 
John D Osborne \ Sheriffs' Education & Training Standards Comm 
Tame L Reid v Criminal Justice Ed & Training Stds Comm 
James L Tern v Sheriff's' Ed & Training Standards Commission 

Private Protective Services Board 
Russell Sturkie v Private Protective Services Board 
Wayne Carey \ Private Protective Serv ices Board 
Claims Venfication. Inc v Private Protective Services Board 
Walter R Shirer \ Private Protective Services Board 
Stacev L Williams \ Private Protective Services Board 
Eugene Norman Garrett \ Private Protective Semces Board 
G Russell Smith v Private Protective Sen. ices Board 
David C Brisson v Private Protective Services Board 
Danny Charles Garrett v Private Protective Services Board 
David C Truesdale v Private Protective Services Board 
Dennis Ray Hvatt v Private Protective Sen ices Board 
Alfred D Malson v Private Protective Services Board 
Rodney Hamilton Marsh v Private Protective Serv ices Board 
Melvin Eugene Davis v Private Protective Serv ices Board 
Glen Leon Fitchette v Private Protective Serv ices Board 
Arvin Itwaru \ Private Protective Services Board 
William Pope v Private Protective Services Board 

LABOR 

Hildreth Mechanical & Maintenance v Labor/Labor Standards 
Labor World. Eric Feinstein v Labor. Harry E Payne. Jr 

BOARD OF LICENSED PROFESSIONAL COl NSELORS 

Carolyn 1 Hicks v Board of Licensed Professional Counselors 

BOARD OF MEDICAL EX,\M1NERS 

Joe D Crawford. M D v Medical Bd of NC Bd of Medical Examiners 



Lenoir Ct\ Bd of Ed 
Wake Countv Schools 



PLBLIC INSTRLCTION 

Linda & Danny Howard for Nikki Howard v 
George & Ruth Sinclair for Adam Sinclair i 

(Special Education Services) 
Nicholas Eirschele. By and Through! His Parents. Charles & Kathleen 

Eirschele \ Craven Countv Board of Education 
Dewitt Bnnson & Elizabeth Bnnson v Craven Countv Board of Education 
Gene Edward Lloyd v Department of Public Instruction 



CASE 




DATE OF 


NLIMBER 


ALJ 


DECISION 


98 DOJ 0479 


Chess 


10/07/98 


98 DOJ 0491*''' 


Phipps 


01/08/99 


98 DOJ 0525 


Morrison 


09/09/98 


98 DOJ 0574 


Chess 


07/30/98 


98 DOJ 0600 


Morrison 


08/07/98 


98 DOJ 0841 


Phipps 


09/16/98 


98 DOJ 0847»" 


Gray 


08/20/98 


98 DOJ 0875 


Chess 


11/13/98 


98 DOJ 0877 


Mann 


12/30/98 


98 DOJ 0878 


Phipps 


09/08/98 


98 DOJ 0879 


Owens 


08/31/98 


98 DOJ 0907 


Mann 


01/15/99 


98 DOJ 0922 


Mann 


12/22/98 


98 DOJ 0930 


Phipps 


09/22/98 


98 DOJ 0982 


Owens 


03/18/99 


98 DOJ 1 007 


Reillv 


10/13/98 


98 DOJ 1008 


Smith 


01/07/99 


98 DOJ 1057 


Chess 


03/26/99 


98 DOJ 1058 


Smith 


01/08/99 


98 DOJ 1059 


Gray 


01/04/99 


98 DOJ 1125 


Phipps 


12/30/98 


98 DOJ 1308 


Gra\ 


02/10/99 


98 DOJ 130W 


Chess 


03/24/99 


98 DOJ 1 360 


Gray 


01/28/99 


98 DOJ 1361 


Gray 


03/16/99 


98 DOJ 1421 


Chess 


01/06/99 


98 DOJ 1441 


Reilly 


02/10/99 


98 DOJ 1462 


Grav 


03/25/99 


98 DOJ 1463 


Wade 


04/07/99 


98 DOJ 1491 


Owens 


04/06/99 


98 DOJ 1 502 


Morrison 


03/22/99 


98 DOJ 1 529 


Gray 


03/16/99 


98 DOJ 1 623 


Chess 


01/13/99 


98 DOJ 1791 


Wade 


04/22/99 


97 DOJ 0725 


Chess 


04/28/99 


98 DOJ 0619 


Owens 


11/19/98 


98 DOJ 0848 


Smith 


08/04/98 


98 DOJ 0937 


Morrison 


09/17/98 


98 DOJ 0938 


Morrison 


08/18/98 


98 DOJ 0939 


Morrison 


08/18/98 


98 DOJ 0940 


Owens 


11/19/98 


98 DOJ 094 1 


Owens 


11/19/98 


98 DOJ 1081 


Morrison 


09/17/98 


98 DOJ 1082 


Morrison 


12/10/98 


98 DOJ 1 1 39 


Owens 


11/19/98 


98 DOJ 1141 


Morrison 


09/29/98 


98 DOJ 1142 


Owens 


11/04/98 


98 DOJ 1145 


Morrison 


09/22/98 


98 DOJ 1 307 


Owens 


11/03/98 


98 DOJ 1493 


Morrison 


12/10/98 


98 DOJ 1 748 


Morrison 


02/09/99 


98 DOL 0903 


Mann 


11/04/98 


98 DOE 1256 


Gray 


11/05/98 


98LPC 1730 


Chess 


03/05/99 


98BME0870 


Owens 


07/30/98 


97EDC 1047 


Gray 


10/30/98 


97EDC 1233 


Phipps 


08/11/98 


97 EDC 1 234 


Phipps 


07/16/98 


97EDC 1298 


Phipps 


1 0/26/98 


98 EDC 01 10 


Reilly 


09/10/98 



PLBLISHED DECISION 
REGISTER CITATION 



1963 



NORTH CAROLINA REGISTER 



June I, 1999 



13:23 



CONTESTED CASE DECISIONS 



AGENCY 

Joseph Hiighe\ Bamnacr \ Dr Michael Ward. Depl ofPubhc Instruction 

Mrs Ph\lhs ^' Moore \ Cumberland Count> Schools 

Lanes Bruce Hamll v State Board of Education 

L K on hehallofher son, J }i , as well as on her own behalf \ St Bd /Ed 

Jennifer VonHotlinan v Charlotte-Mecklenburg Board of liducation 

Joseph J Sarrerro V Department of Public Instruction 

M E and her husband. PE . indi\idually. and on behalf of their son. C E 

V Bd of Ed for Buncombe Ct\ a/k/a Buncombe Ct\ Public Schools, et al 
Sandra Cherr\ v NC Dept of Public Instructions. Licensure Section 

STATE BAR 

Linda R Sharp v North Carolina State Bar 

Reginald!- Frazier v NC St Bar Disc Hearing Coinm , NC St BarCncl 



CASE 




DATE OF 


PI BUSHED DE{ ISION 


MMBER 


AU 


DECISION 


REGISTER ( IT VTION 


98EDC0127 


Mann 


01/14/99 




98 EDC 0305 


Gra\ 


08/05/98 




98EDC0350 


Smith 


09/17/98 




98 EDC 0370 


Smith 


10/14/98 




98 EDC 0411 


Chess 


04/15/99 




98 EDC 0459 


Owens 


08/10/98 




98 EDC 0566 


Gra\ 


10/01/98 




98 EDC 1501 


Owens 


04/16/99 




98 BAR 1344 


Morrison 


11/09/98 




99 BAR 0204 


Owens 


03/08/99 





STATE PERSONNEL 



Department of Administration 

David Grigsby v NC Commission of Indian Affairs 

Department of Agriculture 

William T McClelland \ Department of Agriculture 
William T McClelland \ Department of Agriculture 



Community Colleges 

Dr William R Strickland v 



NC Community College System 



Department of Correction 

Annie D Di™n v NC Correctional (Inst ) Center for Women 

Terry T Rees v Department of Correction 

Mohammad H Baloch. M D \ Department of Correction 

Leon Owens v Department of Correction 

Terry T Rees v Department of Correction 

Michael A Smith v Department of Correction 98 OSP 0231 •'' 

Michael A Smith v Department of Correction 98 OSP 0317*" 

Jayne D Bledsoe v Correction. Div of Adult Probation & Parole 

Daxid Spencer Norris v Correction. Di\ of Adult Probation & Parole 

Carl W Craven. II v Pender Correctional Institution 

Er\ in Shaw \ Martin Homer. .'Ksst Super . Corr . Sandv Ridge Corr Ctr 

Joseph Szilagyi v Department of Correction 

Dennis S Harrell v Dept of Correction. Caledonia Correctional Institute 

Tommy L Hancock v Department of Correction 

Tommy L Hancock v Department of Correction 

Elaine Jackson \ Department of Correction 

Bertha Darden v Raymond Smith & Dept of Correction. Central Prison 

Robert C Lowder v Brown Creek Correctional institution 

Ruth Moselev v Department of Correction 

Lamont M Burt v Departm.nt of Correction 

Mark Murphy v Correction. Div of Adult Probation & Parole 

Leo Powell v Harnett Correctional Institute. Department ofCorrection 

Joseph Burch v Department ofCorrection 

Amos Boone v Department ofCorrection 

Nona W Hubbard v DOC. Division of Community Corrections 

Robert R Stovall v Department of Correction 

Harold Keith Hamm v Dept ofCorrection Enterprise/Personnel Off 

Joseph A Harrell v Correction, Div of Adult Probation & Parole 

Anthony Doran Godwin v Correction. Div of Adult Probation & Parole 

Bunny M Poindexter v Department of Correction. McCain Hospital 

Deborah GritTin v Warren Correctional Institution. Mr Smiley 

Lonnie F McCaskill. Ill \ Department of Correction 

Diana A Freeman v Department ofCorrection 

Br\ant K Peterson v Todd Pinion. Piedmont Corr Inst . Asst Sup 

DeCarlos Stanley v Department ofCorrection 

Sandra Ketchie v Department ofCorrection 

Charlotte Clarke v Department ofCorrection 

Jerry D Crawford \ Department of Correction 

Crime Control and Public Safetf 

Roger D Davis v Crime Control & Public Safety, St Hwa Patrol 
Albert R Little v Crime Control & Public Safety, Info Sys Specialists 
Charles A Lindquist v Crime Control & Public Safety. NC Hwy Patrol 
Charles .\ Lindquist v Crime Control & Public Safety. NC Hwy Patrol 
Charles L Gamer v Crime Control & Public Safen. NC St Hw\ Patrol 
Terr> L Putman v Crime Control & Public Safers. State Hwy Patrol 
Thomas E Carlton v Crime Control & Public Satetv. St Hwa Patrol 



98 OSP 0428 


Morrison 


12/14/98 




98 OSP 1405*'' 


Reillv 


02/17/99 




98 OSP 1536*-' 


Reilly 


02/17/99 




98 OSP 1305 


Gray 


12/07/98 




97 OSP 0166 


Mann 


11/06/98 




97 OSP 1671*' 


Smith 


06/30/98 




98 OSP 0014 


Gray 


09/01/98 




98 OSP 0050 


Becton 


07/10/98 




98 OSP 0119*' 


Smith 


06/30/98 




Reilly 


08/11/98 






Reillv 


08/11/98 






98 OSP 0543 


Owens 


07/29/98 




98 OSP 0572 


Gray 


12/18/98 




98 OSP 0633 


Smith 


06/25/98 




98 OSP 0671 


Phipps 


10/09/98 




98 OSP 0757 


Owens 


10/05/98 




98 OSP 0846 


Morrison 


09/08/98 




98 OSP 0881 


Owens 


08/04/98 




98 OSP 0882 


Owens 


10/09/98 




98 OSP 0883 


Phipps 


03/17/99 




98 OSP 0905 


Smith 


09/25/98 




98 OSP 0984 


Owens 


12/02/98 




98 OSP 1 092 


Gray 


10/07/98 




98 OSP 1115 


Smith 


10/06/98 




98 OSP 1 1 55 


Mann 


12/21/98 




98 OSP 1 1 75 


Owens 


11/25/98 




98 OSP 11 87 


Chess 


04/15/99 




98 OSP 1 1 88 


Smith 


12/15/98 




98 OSP I2I4 


Owens 


10/27/98 




98 OSP 1282 


Phipps 


10/26/98 




98 OSP 1 409 


Gray 


12/16/98 




98 OSP 1411 


Gray 


12/11/98 




98 OSP 1 504 


Owens 


04/08/99 




98 OSP 1566 


Smith 


02/09/99 




98 OSP 1583 


Chess 


01/07/99 




98 OSP 1 597 


Morrison 


02/16/99 




98 OSP 1688 


Gray 


03/31/99 




98 OSP 1787 


Owens 


02/15/99 




99 OSP 0027 


Morrison 


04/16/99 




99 OSP 0041 


Phipps 


04/09/99 




99 OSP 0143 


Owens 


03/16/99 




99 OSP 0346 


Gray 


04/28/99 




97 OSP 061 7 


Chess 


05/27/98 




97 OSP 1 1 57 


Morrison 


07/22/98 




98 OSP 01 70 


Gray 


01/22/99 


13 18 NCR 1592 


98 OSP 0341 


Gray 


01/22/99 




98 OSP 0467 


Morrison 


03/12/99 




98 OSP 0489 


Morrison 


02/26/99 




98 OSP 09 19 


Phipps 


09/24/98 





13:23 



NORTH CAROLINA REGISTER 



June I, 1999 



1964 



wtmmmmKrmmmmtmmBwisimii 



i(uiJ_:aaiuiuu(Luiun^i 



gRaHHWifcE^-i-i^w^iigaa 



CONTESTED CASE DECISIONS 



AGENCY 

Eastern North Carolina School for the Deaf 

Cath\ A Lancaster v Eastern North Carohna School for the Deat^ 

Employment Security Commission 

Jane B Bolm and Arlene G Sellers v Employment Securitj' Commission 
Jane B Bolm and Arlene G, Sellers v Employment Security Commission 

Environment and Natural Resources 

Charles Anthony Bruce v ENR. Division of Parks and Recreation 

Patrick K W Howie v Department of Environment and Natural Resources 

William Steven Ray v Parks and Recreation Falls Lake-David 

Kellam-Supert 
Don N Mitchell v North Carolina Wildlife Resources Commission 

Health and Human Services 

Velma Harper v Dept of Health & Human Services, Caswell Center 

Annette Honea v Department of Human Resources 

William David Simpson v Macon Count\ Board of Health 

Angela M Miles v Cumberland County Department of Social Services 

Shung Fung-Chin v Department of Human Resources. Caswell Center 

Walker Cannon v DHR/Caswell Center 

Charitv Swick v Cumberland CounU Department of Social Services 

Yolandra Best and Roy Hudson v DHHS, John Umstead Hospital 

Yolandra Best and Roy Hudson v DHHS. John Umstead Hospital 

Donald Ras Ebron v Department of Human Resources 

Kenneth Dippel v Columbus County Dept of Social Services 

Fred Foster. Jr v Department of Health and Human Services 

Donald Ray Ebron v Department of Human Resources 

Shung Fung-Chin v Department of Human Resources. Caswell Center 

Ruth Holroyd v Montgomers Ct> DSS. Children's Ser\ices 

Tilda D Whitaker v Nash Count>' Health Department Board of Directors 

Fred Foster, Jr v Department of Health and Human Services 

James W Crews v DHHS. Murdoch Center 

Patricia R Quick v DHHS. Dorothea Dix Hospital 

Angela M Miles v Cumberland Count\ Department of Social Ser\'ices 

Delores Laveme Rich v Health & Human Services. Dorothea Dix Hosp 

Clifidean Bethea v Lincoln Co Department of Social Services 

Robin Heavner Franklin V Lincoln Co Dept of Social Services 

Pat Hovis v Lincoln County Department of Social Services 

Elwin C Munson v Health & Human Services. Juvenile Evaluation Center 

Fred Foster. Jr v Department of Health and Human Services 

Jackie M Sinclair v Duplin-Sampson Area Mental Health DD. SAS 

David A Kilpatrick v Health & Human Services, Caswell Center 

Fred Foster, Jr v Department of Health and Human Services 

Laura Blanton v Cleveland Center 98 OSP 0453 

Anthony M Ruiz v Department of Health & Human Svcs, Youth Svcs 

Rudolph Waters v DHHS, Youth Services. Dobbs School 

Euwell Falconer v Karen A Andrews. Gaston-Lincoln Area Mental Health 

Jeffrey L Williams v Dorothea Dix Hospital 

Minnie Barnes Edwards v Pitt Cry Mental Health. Dev Disabilities/SA 

Delores Laveme Rich v DHHS. Dorothea Dix Hospital 

Barbara Jean Paquette v Durham Countv (respondeat superior for the 

Durham County Public Libran ) 
Lmda Paige v Center Point Human Services Forsyth Mental Health 

Forsyth Industrial Systems 
Fred Foster Jr v Department of Health & Human Senices 
Fred Foster Jr v Department of Health & Human Services 
Fred Foster Jr v Department of Health & Human Services 
Stanley K Strong v Jimmy Summen ille. Dobbs School. Youth Svcs 
Derrick Skinner v Health & Human Services. Cherry Hospital 
Kelvin J Leeks v Cumberland Ct\ Mental Health & Sub Abuse Facilitx 
Fred Foster Jr v Department of Health & Human Services 
Paul L Long v Department of Health & Human Services 
Lisa A Pharr, Melinda Malone Hembree and Fredia S Hudson v 

Gaston County Department of Social Services 
Fred Foster Jr v Department of Health & Human Services 
Laurie K Smith v Cahbarrus County Department of Social Services 
Brindia A Gaines v Juvenile Evaluation Center 
Brenda Brogden v Dept of Health & Human Services MH/DD/SAS 



CASE 




DATE OF 


PIBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


98 OSP 0482 


Gray 


11/30/98 




97 OSP 1122'' 


Chess 


06/02/98 




97 OSP 1134*' 


Chess 


06/02/98 




98 OSP 0240 


Reillv 


06/08/98 




98 OSP 1240 


Reilly 


02/11/99 




98 OSP 1603 


Chess 


03/19/99 




99 OSP 0064 


Owens 


04/12/99 




96 OSP 0109 


Chess 


02/02/99 




96 OSP 0833 


Chess 


08/24/98 




97 OSP 0167 


Chess 


01/27/99 


13 17NCR 1488 


97 OSP 061 3*' 


Gray 


07/10/98 




97OSP0638»"' 


Chess 


08/13/98 




97 OSP 0731 


Phipps 


11/30/98 




97 OSP 0775 


Gray 


07/10/98 




97 OSP 0862*" 


Chess 


08/13/98 




97 OSP 0863*" 


Chess 


08/13/98 




97 OSP 0881*-- 


Phipps 


02/09/99 




97 OSP 0905 


Gray 


11/09/98 




97 OSP 1287*'- 


Smith 


08/20/98 




97 OSP 1406*-- 


Phipps 


02/09/99 




97 OSP 1530*'" 


Chess 


08/13/98 




97 OSP 1586 


Smith 


05/27/98 


13 02 NCR 257 


97 OSP 1665 


Gray 


12/02/98 




97 OSP 1701*'- 


Smith 


08/20/98 




98 OSP 0060 


Gray 


07/20/98 




98 OSP 0061 


Becton 


07/16/98 




98 OSP 0084*' 


Gray 


07/10/98 




98 OSP 0120 


Gray 


07/08/98 




98 OSP 1238*-" 


Phipps 


04/09/99 




98 OSP 1239*-" 


Phipps 


04/09/99 




98 OSP 1348*-" 


Phipps 


04/09/99 




98 OSP 0140 


Phipps 


10/28/98 




98 OSP 0187*'- 


Smith 


08/20/98 




98 OSP 0252 


Smith 


12/31/98 




98 OSP 0271 


Owens 


08/13/98 




98 OSP 0403*" 


Smith 


08/20/98 




Smith 


10/02/98 






98 OSP 0454 


Gray 


06/04/98 




98 OSP 0474 


Morrison 


07/30/98 




98 OSP 0538 


Reilly 


08/06/98 




98 OSP 0595 


Becton 


07/22/98 




98 OSP 0684 


Gray 


03/15/99 




98 OSP 0763 


Gray 


1 2/02/98 




98 OSP 0765 


Morrison 


08/05/98 




98 OSP 0819 


Smith 


11/05/98 




98 OSP 1012*-- 


Gray 


03/18/99 




98 OSP 1013*" 


Gray 


03/18/99 




98 OSP 1014*" 


Gray 


03/18/99 




98 OSP 1017 


Gray 


12/07/98 




98 OSP 1035 


Gray 


09/21/98 




98 OSP 1037 


Morrison 


02/11/99 




98 OSP 1075*" 


Gray 


03/1 8/99 




98 OSP 1202 


Owens 


12/16/98 




98 OSP 1380 


Gray 


04/07/99 


13 23 NCR 1978 


98 OSP 1218*" 


Gray 


03/18/99 




98 OSP 1617 


Reillv 


03/03/99 




98 OSP 01 10 


Chess 


04/01/99 




99 OSP 0130 


Owens 


04/08/99 





( 



♦ 



i 



Consolidated Cases. 



7965 



NORTH CAROLINA REGISTER 



June 1, 1999 



13:23 



CONTESTED CASE DECISIONS 



Departmeiu of Insurance 

PatDcia Case> Rollins \ Department of Insurance 

Department of Justice 

Linda Margaret Koss v State Bureau of Investigation 
Margin Sherriel Clark v Department of Correction 
and 
MarNinS Clark \ Criminal Justice Ed & Trainine Stds Comm 



9SOSP07:9 


Chess 


12/14/98 


97OSP0I89 


Chess 


08/14/98 


98OSP0300*" 


Phipps 


01/08/99 



Department ofPuhlii Instruction 

Liihe Bumette Pearsall \ Wayne Ct\ Bd of Ed. Mrs Veda McNair and 
Mr Steve Tavlor 



( OSP 0944 



Smith 



08/25/98 



Secretary of State 

Jonathan M Demers v Department of Secretarv of State 

Department of Transportation 

Pasquale Vendetluoli \ Department of Transportation 

James L Hall \ Department of Transportation 

Johnnv O Shnarv Department of Transportation 

Teresa G Mitchell \ Department of Transportation 

Larr\ W Davis v Department of Transportation 

Shern Lynn Noles v Department of Transportation-NCDMV 

Clarice Gooduin Arthur v Department of Transportation. Femes Division 

Warren J Haines. Jr v NC DOT. Di\ of Highways 

Robert L Swinney v Department of Transportation 

Carolyn J Pamell \ Department of Transportation 

Deanna M Brown v Department of Transportation 

University ofNortli Carolina 

Joseph A Bryant v North Carolina A & T University 

Joseph A Br\ant v North Carolina A & T University 

Douglas Love. Jr v UNC Hospitals 

Deborah J Fenner v NC Central Uni\'ersity 

Joyce M Smith \ North Carolina Central University 

Edwin Swam v University of North Carolina at Chapel Hill 

Patricia A G Roberts v Asst /Chan /Qty Mgmt /Dir Human Res UNCW 

Leo Wattbrd. Roosevelt Partis, Claiborne Baker, et al v University of 

North Carolina at Chapel Hill 
Johnny Johnson. Jr v A & T St University Student Union-Grievance Bd 
Jessie L Johnson \ Bernard K Locklear. UNC at Pembroke 
Jonathan L Fann \ North Carolina State flniversity Ph\sical Plant 
Greta M Hawthorne v Universirs of NC at Pembroke 
Robert W Bnnson v NC State University 
Alberta A Ingram-Peterson v NC Central University 
Leslie Wright v NC State University 
Thomas H Hastye, III v NC A & T State liniversity 
Fred T Jackson \ I 'NC-Charlotte Recreational Facilities 
Betty Parks v Wii: ion Salem State University 98 OSP 1278 
Ronnie Bell v Dave Hillard, UNC at Charlotte 
Brenda D Moore v Atty Wanda Jenkins, Fayetteville St University 
Joseph Cartoll Goodlake v UNCA 98 OSP 1 535 

Timoths Edwin Grizzard \ North Carolina State University 

STATE TREASl RER 

Hugh A Wells v Consolidated Judicial Retirement System of NC, 

Bd of Trustees Teachers and State Employees' Retirement System 
Walter Williams V Bd of Trustees NC Local Gov Emp Retirement Sys 
Aaron Day V Bd Of Trustees NC Local Gov Emp Retirement Sys 
Alfred R Grooms v State Treasurer. Retirement Systems Division 



TRANSPORTATION 

David Warren Dew et al 



\ Motor Vehicles, Alexander Killens Comm 



IM\ ERSIT\ OF NORTH CAROLINA 

Patricia D Hall v University of North Carolina at Chapel Hill 
Ladonna P James v UNC Hospitals 
Joyceline Sellars v UNC Hospitals 



97 OSP 1018 


Becton 


07/07/98 


13 03 NCR 343 


97 OSP 1090 


Mortison 


12/19/98 




97 OSP 1222 


Reillv 


05/12/99 


13 23 NCR 1972 


97 OSP 1 366 


ReilK 


09/01/98 




97 OSP 1565 


Smith 


12/09/98 




98 OSP 0241 


Gray 


07/08/98 




98 OSP 0269 


Chess 


08/11/98 




98 OSP 0864 


Phipps 


09/24/98 




98 OSP 11910 


Gray 


04/16/99 




98 OSP 0969 


Gray 


02/09/99 




98 OSP 1251 


Owens 


03/01/99 




98 OSP 1438 


Phipps 


03/15/99 




96 OSP 1698*'" 


Mann 


12/02/98 




97 OSP 0242*'" 


Mann 


12/02/98 




97 OSP 0662 


ReilK 


06/08/98 




97 OSP 0902 


Chess 


05/29/98 




97 OSP 1297 


Smith 


06/25/98 




97 OSP 1694 


Morrison 


07/31/98 




98 OSP 01 78 


Phipps 


10/08/98 




98 OSP 0254 


Chess 


07/17/98 




98 OSP 0299 


Owens 


09/02/98 




98 OSP 0444 


Gray 


09/29/98 




98 OSP 0465 


Becton 


07/17/98 




98 OSP 083 1 


Chess 


09/11/98 




98 OSP 0887 


Owens 


08/10/98 




98 OSP 1024 


Smith 


10/14/98 




98 OSP 1088 


Smith 


02/03/99 




98 OSP 1114 


Reilh 


12/30/98 




98 OSP 1216 


Smith 


10/22/98 




Chess 


n/25/98 






98 OSP 1 330 


Smith 


11/10/98 




98 OSP 1506 


Smith 


01/25/99 




Phipps 


01/07/99 






99 OSP 01 40 


Owens 


04/06/99 




98DST0316 


Mortison 


06/05/98 


13 01 NCR 166 


98DST0774 


Smith 


12/08/98 




98DST0967 


Phipps 


04/15/99 


13 23 NCR 1967 


98DST1I28 


Reilly 


03/05/99 




95 DOT 1144 


Gray 


06/04/98 




98 LFNC 0397 


Reilly 


08/20/98 




98 UNC 0591 


Becton 


07/20/98 




98 UNC 1113 


Smith 


10/22/98 





13:23 



NORTH CAROLINA REGISTER 



June 1, 1999 



1966 



«UUJ«KUflJ«RHH^a*a 



■ nfTJttihhiiW^'' '-'->-ii-J^'^^^«^ua 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COl NT^ OF ALAMANCE 



IN THE OFFICE OF 

ADMINISTR^ATIN E HEARINGS 

98 DST 0967 



I 



AARON DA^ 

Petitioner, 

V. 

BOARD OF TRUSTEES OF N.C. 

LOCAL GOVERNMENTAL 

EMPLOY EES RETIREMENT SYSTEM 

Respondent. 



RECOMMENDED DECISION 



This contested case was heard before Meg Scott Phipps, Administrative Law Judge, on February' 12, 1999 in Graham. North 



Carolina. 

APPEARANCES 

For Petitioner: Jim H. Joyner, Jr. 

Attorney at Law 

For Respondent: Robert Curran 

Assistant Attorney General 

ISSUES 

1 . Whether the Respondent unlawfully impaired Petitioner's vested retirement rights, acted erroneously, or failed to 
act as required by law or rule in failing to calculate Petitioner's disability retirement benefits as if Petitioner worked until he was 65 
years of age when Petitioner's disability retirement vested after only one year of creditable service as set forth in N. C. Gen. Stat. § 
128-27(c)? 

2. Whether Respondent unlawfully impaired Petitioner's vested retirement rights or failed to act as required by law 
or otherwise acted erroneously in failing to allow Petitioner to receive creditable service for pre-Jul\ 1. 1982 so that Petitioner's 
disability retirement benefits would be calculated as if he had worked until age 65? 

STATUTES AND RULES INVOLVED 

1. N. C. Gen. Stat. § 128-27(d)(3) (effective from July I, 1971 through June 30, 1982). 

2. N.C.Gen. Stat, § 128-27(d)(4). 

3. N.C.Gen. Stat. § 128-26(i). 

4. N.C. Gen. Stat. § 128-21(8), (14), and (17). 

5. N. C. Gen. Stat. § 1 28-27(c) as amended effective April 1. 1991. 

6. Simpson Moore v. North Carolina Local Governmental Employees Retirement System, et ai. 363 S.E. 2d 90 (N.C. 
App. 1987), affirmed per curiam. 372 S.E. 2d 559(N.C, 1988). 

7. Faiilkenhwy. et al v. Teachers and State Employees Retirement System of North Carolina, et al. 483 S.E. 2d 422 
(N.C. April II, 1997). 

FINDINGS OF FACT 

From official documents in the file, sworn testimony of the witnesses, and other competent and admissible evidence, 
including stipulations of the panics, it is found as a fact that: 



1967 



NORTH CAROLINA REGISTER 



June 1, 1999 



13:23 



CONTESTED CASE DECISIONS 



1. Petitioner was bom on February 2, 1955. 

2. Petitioner was employed by the North Carolina Department of Transportation and was a contributing member of 
the Teachers and State Employees Retirement System fi^om August 25, 1973 through March 26, 1976. 

3. When Petitioner voluntarily left his position with the North Carolina Department of Transportation, he withdrew 
his retirement contributions. 

4. In June 27, 1977, Petitioner began employment as a fireman with the City of Burlington, North Carolina. 

5. After a probationary period of employment of six months duration. Petitioner became a member of the Local 
Governmental Employees Retirement System and began making retirement contributions thereto on January I, 1978. 

6. At all times during his employment with the City of Burlington. Petitioner worked as a "fireman" as defined in N. 
C. Gen. Stat. § 58-86-25. 

7. In 1 987, the North Carolina Court of Appeals ruled that members in the Local Governmental Employees Retirement 
System with five years of "creditable service" had a vested contractual right to rely on the terms of the General Statutes which set 
forth the retirement provisions for Local Governmental Employees as those terms existed at the moment the member's retirement 
rights became vested. Simpson Moore v. North Carolina Local Governmental Employees Retirement System, et ah 363 S.E. 2d 90 
(N.C. App. 1987), affirmed per curium, 372 S.E. 2d 559 (N.C. 1988). 

8. In the Sitnpson Moore decision, the Court of Appeals held that the vested retirement rights of Local Governmental 
Employees could not be made subject to adverse legislative modification after vesting because any reduction in benefits would violate 
Article One, Section 10, Clause 1 of the United States Constitution, which prohibited states from enacting any law "impairing the 
obligation of contracts" unless legislative action was reasonable and necessary to serve an important public purpose. Simpson Moore, 
363 S.E. 2d at 94. 

9. The plaintiffs in Simpson Moore were former firemen who had qualified for disability retirement and had five or 
more years of service as of 1978. Simpson Moore, 363 S.E. 2d at 92. 

10. Under N.C. Gen. Stat. § 128-27(d)(3), which was in force from July I. 1971 through June 30, 1982, a member of 
the Local Governmental Employees Retirement System retiring on disability received a benefit calculated as if he had worked to the 
age of 65 years. Id. 

11. North Carolina General Statutes, Chapter 128, was amended, effective July I, 1982. by the addition of a new 
subsection 128-27(d4) which basically provided that those members retiring on or after July I. 1982, were entitled to have their 
benefits calculated as if they had worked to the earliest date on which they would have been eligible for an unreduced benefit, 
basically the earlier of 30 years or age 65. Simpson Moore, 363 S.E. 2d at 92. 

1 2. This statutory change meant that a member beginning creditable service at age 20 could no longer, upon disablement 
after vesting, receive a benefit calculated as if he had worked until he was 65 (45 years). Instead, the member could claim no more 
service credit years than a person retiring on service retirement after a full career of 30 years. Id. Members who began work prior 
to age 35 or who could claim additional service credits stood to receive a smaller retirement allowance under the new law going into 
effect on July 1, 1982, than under the pre-July 1, 1982 law. Simpson Moore, 363 S.E. 2d at 92. 

13. The Simpson Moore plaintiffs contended, and the Court of Appeals and Supreme Court agreed, that although the 
Simpson Moore plaintiffs retired on disabilits after July 1. 1982. they were entitled to have their disability retirement calculated 
according to the more favorable pre-July 1982 formula in effect at the time they became vested members of the system. Id. 

14. Therefore, under the law established as Simpson Moore, local government employees with five years of creditable 
service prior to July 1, 1982, are allowed to calculate their disability retirement benefits as if they had worked to age 65. 

15. On April 1, 1991. a legislative amendment to N. C. Gen. Stat. § l28-27(c) went into effect, which amendment 
provided that a fireman, as defined in N. C. Gen. Stat. § 58-86-25, who had only one year of creditable service and became 
incapacitated for duty as the natural and proximate result of an injury by accident occurring while in the actual performance of duty 
could be retired by the Board of Trustees in the Local Governmental Employees Retirement System on a disability retirement 



13:23 NORTH CAROLINA REGISTER June 1, 1999 1968 



CONTESTED CASE DECISIONS 



allowance, eftectively reducing the five year vesting rule to one year for those firemen who became disabled as a result of an injury 
sustained by accident in the actual performance of duty. 

16. During his employment with the City of Burlington as a fireman. Petitioner received a manual which outlined his 
retirement benefits in the system. The Petitioner relied on this manual to provide accurate information about his rights. 

17. The manual provided to the Petitioner contained several passages regarding the right of a member of the Local 
Governmental Employees Retirement System to repurchase previously withdrawn contributions and add that creditable service to the 
member's service in the Local Governmental Employees Retirement System. 

18. On April 11, 1997, the Supreme Court decided the case of Faulkenbuiy. et al v. Teachers and State Emplovees 
Retirement System of North Carolina, et a/, 483 S.E. 2d 422, 345 N.C. 683 ( 1 997). 

19. In the Faidkenhwy case, the court reaffirmed the decision in Simpson and ruled that "at the time the plaintiffs rights 
to pensions became vested, the law provided that they would have disability retirement benefits calculated in a certain way. These 
were rights that they had earned and that may not be taken from them by legislative action." Faulkenbwy, 483 S.E. 2d at 427. 

20. The Supreme Court in Faulkenbioy also ruled that statutory amendments which increase benefits to those vested 
members of the retirement systems cannot be abrogated by later action. Faidkenbur\\ 483 S.E. 2d at 428: 

The defendants next contend that plaintiffs Faulkenbury and Woodward argue that their contract rights 
arose at the time their rights to pensions were vested. The plaintiffs were vested before I July 1982, and, 
say the defendants, the rights must be determined as of those dates. If this is so, the plaintiffs rights have 
not been impaired because they would have received less on the dates of vesting than they would have 
received on 1 July 1982. Whenever the plaintiffs pension rights vested, they were entitled to have their 
rights calculated on I July 1982. The State and Local Governments on that date offered certain things 
to the plaintiffs, which the plaintiffs accepted by continuing in their employment. 

21. On August 7, 1997, Petitioner accidentally mis-stepped off the back of a fire truck while in the performance of his 
duties as a fireman. 

22. On May 12, 1998, the Board of Trustees of the Local Governmental Employees Retirement System of North 
Carolina, acting on a report of the Medical Board, approved Petitioner's application for disability retirement, ruling that the medical 
information received was sufficient to establish total disability. 

23. Petitioner visited with Jack W. Pruitt, Director of the Retirement Systems Divisions of the Department of State 
Treasurer, to inquire of Mr Pruitt whether Petitioner's disability retirement benefits would be calculated under the provisions of the 
Simpson Moore case. Petitioner was informed by Mr Pruitt that there was no way for Petitioner's disability retirement benefits to 
be calculated imder the provisions of the Simpson Moore case. 

24. On May 15, 1998, Jack W. Pruitt issued a letter to Petitioner ruling that the repurchase of previously withdrawn 
credit for the service rendered by Petitioner under the Teachers and State Employees Retirement System would not give Petitioner 
five years of creditable service on July I, 1982. Mr Pruitt ruled that "a post-July 1. 1982 purchase will not give you five years of 
creditable service on July 1, 1982." 

25. Petitioner was officially ruled by Respondent to be retired on disability on June 1 , 1 998. 

26. The amount of Petitioner's current monthly disability benefit is $1,328.08. Assuming that Petitioner could purchase 
additional creditable service previously withdrawn and assuming Petitioner would receive the greater benefits provided to Simpson 
Moore class members, his monthly benefit would equal $1,973.66. 

Based on the foregoing Findings Of Fact, the undersigned makes the following: 

CONCLUSIONS OF LAW 

L The Office of Administrative Hearings has jurisdiction in this matter 

2. A contractual relationship exists between Petitioner and Respondent. 



1969 NORTH CAROLINA REGISTER June I, 1999 13:23 



♦ 



CONTESTED CASE DECISIONS 



3. Upon Petitioner performing five years of membership service, which occurred on .lanuar> I, 1983, his contractual 
rights to the retirement systems vested as to those provisions existing at that time and to all subsequently enacted provisions applicable 
to him that did not impair vested property rights. 

4. The disability retirement benefit calculation provisions claimed b> Petitioner was a material term of the contract. 

5. The Petitioner's reliance on the promised compensation, including the disability retirement benefit formulas, was 
reasonable. 

6. On April 1 , 1 99 1 . the General Assembly reduced the five year vesting requirement to one year for those firemen 
who became incapacitated for dut> as the natural and proximate result of an injury occurring while in the actual performance of their 
duties. Since Petitioner was vested as of the date of the amendment, this favorable reduction in the vesting rules immediately inured 
to the benefit of the Petitioner. 

7. The Petitioner is a "fireman" as that term is defined in N. C. Gen. Stat. § 58-86-25. 

8. The Petitioner was rendered incapacitated for dut}, as the natural and proximate result of an accident occurring in 
the actual performance of his duty as a "fireman", as the term "fireman" is defined in N. C. Gen. Stat. § 58-86-25. 

9. Petitioner was thus required to have onl\ one year of creditable service to be eligible for disability retirement under 
the amendments to N. C. Gen. Stat. § 128-27(c). 

10. Therefore, Petitioner's disability benefits must be calcul.ited as if his vesting date was January 1. 1979. 

1 1. The Respondent's application of post-July 1, 1982 disability retirement benefit calculations to the Petitioner is a 
failure by Respondent to act as required b> law. 

1 2. The Respondent's application of post-July 1, 1982 disability retirement calculations to the Petitioner is an erroneous 
act. 

13. The application of post-July 1, 1982 disability retirement calculations to the Petitioner is a substantial impairment 
and diminishment of the Respondent's contractual obligations to the Petitioner. 

14. Alternatively, the Respondent unlawfully impaired the Petitioner's vested retirement rights, failed to act as required 
by law, and otherwise acted erroneously in failing to allow the Petitioner to repurchase pre-JuK I. 1982 creditable service and add 
that repurchased time to the pre-July I, 1982. creditable service of the Petitioner in the System so that Petitioner's disability retirement 
benefits would be calculated as if he had worked until age 65. 

1 5. N. C. Gen. Stat. § 128-26(i) provides that "any person who leaves service after June 30. 1975 and who withdraws 

his contributions in accordance with the provisions of N. C. Gen. Stat § 135-5(f) . . . and who subsequently returns to service 

may. upon completion often years of prior and current membership service, repay in a total lump sum anv and all of the accumulated 
contributions previously withdrawn . . . and receive credit for the service forfeited at the time of withdrawal(s)." [Emphasis 
added.] 

16. Petitioner is entitled under N. C. Gen. Stat. § 128-26(i) to repurchase previously withdrawn contributions in the 
Teachers and State Employees Retirement System and have any and all repurchase contributions count towards his creditable service 
in the Local Governmental Employees Retirement System. 

1 7. Petitioner needs to purchase onK seven months of his previously withdrawn contributions in the Teachers and State 
Employees Retirement System in order to have five years of creditable service prior to July 1. 1982 and thus avail himself of the more 
favorable disability benefit calculation under the reasoning of Simpson and Faulkenbuiy. 

18. In order to give effect to all provisions of the statutes creating the Local Governmental Employees Retirement 
System, it is clear that vesting dates must change over time. To insist that it is only "membership service", as defined in N.C. Gen. 
Stat. § 128-21(14), which satisfies the five year creditable service vesting rule would gut the rights of those employees seeking 
disability retirement irom exercising their statutory prerogative to repurchase previously withdrawn contributions and have the 
repurchased contributions count as creditable service. A statute must be construed as a whole, giving effect if possible to every 
provision. Abell \\ Nash County Board of Education. 321 S.E. 2d 502, ivview denied. 329 S.E. 2d 389. appeal after remand. 365 



13:23 NORTH CAROLINA REGISTER June 1, 1999 1970 



CONTESTED CASE DECISIONS 



S.E. 2d 706 (1984). Where a statute expresses first a general intent and afterwards an inconsistent particular intent, the latter 
expression will be taken as an exception from the former and both will stand. In Re: Slillman. 13 S.E. 2d 544 (N.C. 1941). 

19. The Respondent has underpaid Petitioner his disabilit>' retirement benefits since June of 1998. 

20. The Respondent must recalculate Petitioner's disability benefits so that he is treated as if he worked to age 65. The 
Respondent must begin paying the recalculated proper amount of monthly disability retirement benefits to Petitioner immediately and 
must pay to the Petitioner the proper amount to remedy the under payments of his disability retirement benefits since June of 1998, 
with interest as allowed by statute. 

21 . If in the event the decision that Petitioner is entitled to have his disability benefits recalculated based on the April. 
1991. amendment to N. C. Gen. Stat. § 128-27(c) is overruled, reversed or vacated, then Petitioner is entitled to repurchase seven 
months of pre-Jul\ 1 , 1 982 creditable service at the price required by statute, which price shall be calculated as if the repurchase was 
made on May, 12, 1998. and the Respondent must immediately increase Petitioner's monthly disability benefits from his present 
monthly payment to a monthly payment of $1,973.66. The Respondent must further pay to the Petitioner the sum of $7,101.38 to 
compensate Petitioner for under payments of his disability retirement benefits from June of 1998 through April of 1999. 

RECOMMENDED DECISION 

Based upon the foregoing Findings Of Fact and Conclusions Of Law, the undersigned Administrative Law Judge 
recommends the following: 

L Petitioner's disability retirement benefits be recalculated as if he had worked to age 65; 

2. Petitioner immediately be paid the proper amount of monthly disability retirement benefits; and 

3. Respondent pay to the Petitioner, in a lump sum, the proper amount of money, with interest as allowed by statute, 
to compensate the Petitioner for the monthly under payments of his disability retirement benefits since June of 1998. 

In the alternative, if the decision of this judge is overruled on the issue of Petitioner's entitlement to increased disability 
benefits based on the amendments to N. C. Gen. Stat. § 128-27(c) effective April, 1991, then it is recommended that Petitioner is 
entitled to repurchase seven months of pre-July 1, 1982 creditable service at the price required by statute, which price shall be 
calculated as if the repurchase was made on May 12, 1998, and the Respondent must immediately increase Petitioner's monthly 
disability benefits from his present monthly payment to a monthly payment of $1,973.66. The Respondent must further pay to the 
Petitioner the sum of $7,101.38 to compensate Petitioner for under payments of his disability retirement benefits ft^om June of 1998 
through April of 1999, with interest as allowed by statute. 

ORDER 

IT IS HEREBY ORDERED that the agency serve a copy of the Final Decision on the Office of Administrative Hearings, 
Post Office Drawer 27447, Raleigh, North Carolina 2761 1-7447 in accordance with N. C. Gen. Stat. § 150B-36(b). 

NOTICE 

The agency making final decision in this contested case is required to give each party an opportunity to file exceptions to 
this recommended decision and to present written arguments to those in the agency who will make the final decision. N. C. Gen. Stat. 
§ I50B-36(a). 

The agency is required by N. C. Gen. Stat. § 150B-36(1d) to serve a copy of the Final Agency Decision on all parties and to 
furnish a copy to the parties' attorneys of record and to the Office of Administrative Hearings. The agency that will make the final 
decision in this contested case is the Board of Trustees of the Local Governmental Employees Retirement System. 

This is the 15" day of April, 1999. 



Meg Scott Phipps 
Administrative Law Judge 



♦ 



1971 NORTH CAROLINA REGISTER June 1, 1999 13:23 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COl NT^ OF HERTFORD 



IN THE OFFICE OF 

ADMINISTRATIX E HEARINGS 

97 0SP 1222 



JAMES L. HALL 
Petitioner, 



NORTH CAROLINA DEPARTMENT OF 
TRANSPORTATION 

Respondent. 



RECOMMENDED DECISION 



THIS MATTER came on for hearing before the undersigned Administrative Law Judge on July 21. 1998 and October 21, 
1998. At the hearing of this case, the petitioner was represented b> his attorney. David P. Voerman. The North Carolina Department 
of Transportation vsas represented b) their attorney. Sarah Ann Lannom from the North Carolina Department of Justice. At the 
conclusion of the hearing, the court took the matter under advisement and asked all parties to submit briefs and arguments in respect 
to the matters which had occurred during the trial of the case. 

Based upon the consideration of all evidence presented during the course of the trial of this matter, the briefs submitted by 
the parties, and the oral argument of the parties, the court enters this Recommended Decision. The court specifically finds the 
following facts b\ a preponderance of the evidence, enters its conclusions of law thereon, and based upon the findings of fact and 
conclusions of law enters the Recommended Decision indicated herein. 

FINDINGS OF FACT 

1. This case was begun by the filing of a contested case petition on or about September 29. 1997. The contested case 
petition alleged discrimination based on age in respect to failure to receive promotions within the Department of Transportation. 

2. Prior to filing the petition in this case, the petitioner. James L. Hall, had filed an internal grievance w ith the North 
Carolina Department of Transportation, alleging essentially the same matters that were set forth in the petition for a contested case 
hearing. Hall had exhausted all administrative remedies prior to the filing of the contested case petition in this matter. 

3. At the time of the filing of the petition. Hall had been employed for 1 344 continuous months at the Department 
of Transportation. He was a Transportation Technician Tl. with a pay of appro.ximately $29,663.00 per year, emploNcd within 
Division I of the Department of Transportation, 

4. At the time of the discrimination complained of in the petition. Hall had been employed for 28 continuous years 
with the North Carolina Department of Transportation. He had been a Transportation Technician U for eleven ( 1 ! ) y ears. 

5. In the earh part of 1997. Hall applied for a Transportation Technician IV position available within Division 1 of 
the North Carolina Department of Transportation. He was not selected for the position, and an individual who was much younger than 
Hall, (approximately thirty five (35) years of age at the time), was selected. It is this selection that Hall contends was discriminatory 
in nature, being based upon age. 

6. Petitioner is fifty one (5 1 ) years of age. with a date of birth of February 15, 1947. He appears to be his age. has 
graying or white places in his hair, and does not look particularly old or young for his actual age. 

7. After becoming a Transportation Technician 11, Hall's supervisor was M. G. Carawan. who was the District 
Engineer for the Ahoskie Construction office of the Department of Transportation, (where Hall worked for an extensive period of 
time), during the late 1980's. 

8. In 1988 or 1989. Carawan was absent from work and J. R. Pope, who was then the Assistant District Engineer, 
began to supervise Hall. Pope eventually took over in the late 1980's as District Engineer and became Hall's supervisor on a permanent 
basis. 



13:23 



NORTH CAROLINA REGISTER 



June 1, 1999 



1972 



maaaiuMmiJArjtuii^i^ssss 



1-u^.mikKi.w.^.jj.mJJUJl 



HI 



CONTESTED CASE DECISIONS 



9. J. L. McDonald was Pope's supervisor during the time from the late 1980's through December of 1993. He served 
in a position as the Division Engineer. 

10. In 1989, Hall was issued a letter of reprimand, approved by Pope and MacDonald, for allegedly becoming involved 
in a conflict situation with a Private Contractor working for the Department of Transportation. This letter was eventually removed 
from Hall's file in 1994 or 1995 after Hall petitioned, in writing, for its removal. 

11. In addition. Pope caused to be placed in Hall's file a letter dated July 11,1 989 which was admitted into evidence 
as Petitioner's Exhibit No. 20, and which questioned Hall's ability and competence, without any knowledge on Hall's part. 

12. MacDonald was aware of this letter and was also aware of Hall's complaints about not being selected for promotion 
from 1989 on. In fact, MacDonald generated a document, admitted as Petitioner's Exhibit No. 19, which expressed his concerns about 
Hall. Hall was never provided this document. 

13. In the last ten (10) years. Hall has repeatedly applied for Transportation Technician 111 and Transportation 
Technician IV positions that have been advertised within his Division of the Department of Transportation. In the last five (5) years, 
he has applied for at least four (4) such positions. 

14. The Department of Transportation advertised, for filling, a Transportation Technician IV position within Hall's 
Division in February of 1997. Hall, J. W. Perry, who was previously selected for a Transportation Technician >]] position over Hall, 
and two individuals who were not DOT employees applied -for this job. Peny was 35 years old at the time of his application and Hall 
was 50 years old. 

15. Pope was the deciding individual who made the selection in respect to this position. Pope had made three (3) prior 
selections for vacant positions since 1994. Eight (8) selections had been within Hall's particular work section of the Department of 
Transportation since 1993 for Transportation Technician 111 or Transportation Technician IV jobs. One (1) selection within the last 
five (5) years for these positions involved the selection of an individual who was over age forty (40). All other selections were persons 
under forty (40), and in most cases, well under forty (40). 

16. Exhibit Nos. 4 and 5 contain a summary of such selections which are deemed relevant. 

17. In all cases selected by Pope, supervisory authority approved the selections of Pope. In the selection in question, 
the selection by Pope was approved by supervisory authority, essentially without comment. 

18. Over the course of the last five (5) years, J. R. Pope, as Hall's immediate supervisor has made several comments 
to him concerning his age. These comments have included commenting about the white in Hall's sideburns and hair, and actually 
telling Hall that he was "older than dirt". Pope has made these comments to other individuals who were older individuals within the 
Department of Transportation also. While Pope himself is above forty (40) years of age, these comments have been directed towards 
people who appeared older, or who Pope knew to be advanced in 

19. These comments were not isolated comments, nor where they made in a jovial manner Hall took offense to these 
comments about his age being made, and began to consider that his failure to be selected for all the Transportation 111 and IV 
Technicians positions for which he applied, may well have been related to his age. 

20. In respect to the specific selection in question, occurring in February of 1 997, Hall was selected for an interview 
for this particular selection. During the course of the interview process, no questions were asked of him concerning the job position. 
In fact, the only discussion that occurred between he and J. R. Pope at the interview concerned Pope's medical condition and the stock 
market. 

21. No structured interview, or other interviewing process was effected to qualify Hall for the selection in question, 
and it does not appear that any other interview process was used by Pope in respect to any other selections made by him in the last 
five (5) years. 

22. Prior to the selection being made. Hall had received good or very good fitness ratings for the last five (5) years (see 
Petitioner's Exhibit No. 7). Perrv. who was eventually selected, had received either very good or outstanding fitness reports for the 
last five (5) years (see Petitioner's Exhibit No. 8). 



t 



i 



1973 NORTH CAROLINA REGISTER June I, 1999 13:23 



CONTESTED CASE DECISIONS 



23. Hall was found to be qualified for the position by the Department of Transportation at the time the> conducted the 
interview, and at the time the selection was made. 

24. Hall had completed various academic requirements, had many certifications, and had completed many schools which 
provided him various certifications. Hall had a GED from high school, and some college courses. Petitioner's Exhibit Nos. 15, 16. 
and 17, contain Hall's academic achievements, along with the various certifications and schools he has taken over the years. 

25. Hall, at the time of the selection, had a broad range of experience doing Just about ever> job that a Transportation 
Technician could do within the Department of Transportation. His broad range of experience, with the exception of performing at 
the Transportation Technician III level, far exceeded that of .1. W. Perry, the selectee. 

26. Perry had served as a Transportation Technician IT for approximately three (3) years at the time of his selection. 
The only significant difference between the duties of a Transportation Technician III and a Transportation Technician 1 1 is the amount 
of supervisor> authority exercised, and the size of the projects worked on. As a Transportation Technician moves the ladder of 
promotions, he works on bigger and bigger projects. However, with the exception of the size of the projects, and the complexitv in 
respect thereto, and the possibility, of supervising other Transportation Technicians, the work performed b\ an\ Transportation 
Technician is essentially the same. 

27. Hall, prior to J. R. Pope taking over as his supervisor, had been actively engaged in super\ ision in respect to 
personnel on projects. However, much of the responsibilir>' that Hall had exercised in the past was removed by Pope in the late 1980's 
when Pope told Hall that he did not want him dealing with any personnel of DOT. or being in any job of responsibilitv'. and that Pope 
would never place him in such jobs no matter what. Presumably, this w as because of the matter contained in the letter of reprimand, 
and also because of Pope's personal feelings towards Hall, as expressed in Petitioner's Exhibit No. 1 8. and Petitioner's Exhibit No. 
20. While Pope told Hall about his personal feelings, he did not advise Hall of the placing in his personnel file of the document 
referenced in this paragraph. 

28. After the interview process in this case. Pope was required to prepare a summary of his evaluation of the particular 
emploNce and indicate who he recommended for the job. Pope prepared such a document in respect to Hall. He also prepared such 
a document in respect to Perry. 

29. On the original interview record prepared in respect to Hall (see Petitioner's Exhibit No. 14), Pope, included a 
statement as follows: 

When given assignments requiring responsibility, the applicant has used his authority in such a manner 
as to antagonize subordinate employees and contractor's personnel. 

30. When this interview record was sent to the Division Engineer's Office, it was returned to Mr. Pope, with instructions 
that this sentence be removed. In fact, the sentence was removed, and the document was submitted back to the Division Engineer's 
Office without this sentence in it (see Petitioner's Exhibit No. 10). 

3 1 . The record of this statement in the interview record was not suppose to appear in any documents maintained by the 
Department of Transportation. Somehow, however. Hall obtained the original document. 

32. The Division Engineer testified during the course of the trial that this was an inappropriate comment, and that the 
comment indicated personal bias on the part of the selecting official who recommended Perry for the job and not Hall. He indicated 
it was removed from the record at his instruction, and should not have been included therein. 

33. Pope clearly had a personal bias towards Hall which he had maintained since the late 1980's, and which had not 
been alleviated despite Hall's improved and verv' good performance in the recent years before the selection. Furthermore, Pope had 
expressed specific statements to Hall during the five (5) years before the selection concerning his age, and the aging process, as well 
as expressing similar statements to other employees of the Department of Transportation who were advanced in AGE. 

34. Pope, as the selecting official, exhibited both personal bias and bias based upon age toward Hall in respect to the 
selection process in this particular case, and this personal bias based upon these two factors, is clearly present in the original interview 
record submitted as Petitioner Exhibit No. 14. 

35. The officials approving the selection by Pope, were clearly aware of this personal bias upon receipt of Petitioner's 
Exhibit No. 14, but did not question the selection by Pope, or inquire into the facts and circumstances surrounding such. Furthermore, 

13:23 NORTH CAROLINA REGISTER June 1, 1999 1974 

i i iii mi i»i»ii«^»!i m.iijj»i.uMiuuiMMji>Hiag^iiLii»iiiip^nnit!ei;i5c»03;i-i.iu.kKi.t,i.j..">'jjjji.j 



CONTESTED CASE DECISIONS 



no real effort was made by the Department of Transportation to re-examine the selection on the basis of personal bias or age at the 
time that Hall submitted a grievance in respect to the selection and had a hearing concerning such. 

36. The failure to select Hall for the position, therefore, was based upon the personal bias of Pope, and Pope's direct 
statements concerning Hall's age during the period of time before the selection was made. 

37. Pope has admitted to making the comments to Hall concerning his age, but claims that they were done in a joking 
manner. He has also admitted making comments concerning age to other DOT employees who have been older workers. 

38. During the period of time that Pope has recommended selections for promotions within his particular District, he 
has never made a selection of anyone over age forty (40) nor recommended the selection of anyone over age forty (40) for such 
promotions. 

39. Direct statements concerning age, coupled with the record of selections by J. R. Pope indicate a pattern of 
discrimination based upon age in respect to the selection process for promotions to Transportation Technician HI and IV positions 
within Pope's District. 

40. While the Department of Transportation has presented evidence that Perry was qualified for the job, they have not 
presented sufficient evidence that his qualifications exceeded Hall's, especially in the area of experience and diversity of the jobs 
previously performed by Hall. Furthermore, Hall has a greater educational background, and the Department of Transportation has 
failed to demonstrate other reasons for the selection of Perry, which are not related to the personal bias on the part of Pope and the 
pattern of age discrimination and direct evidence of age factors in respect to the selection in this case. 

41. The petitioner has shown through direct and circumstantial evidence that age was a motivating factor in the 
employment decision to promote Perry rather than Hall. Further, even if the Department of Transportation presented some evidence 
that Perry was more qualified, the petitioner has carried his burden of demonstrating that this stated reason was pretextual, in light 
of the overwhelming evidence of personal bias and age discrimination followed by Mr. J. R. Pope. 

42. The petitioner has demonstrated by a preponderance of the evidence and specifically by direct evidence concerning 
comments in respect to age, evidence concerning the interview conducted, and the pattern of selections by Pope that the decision to 
not select the petitioner for the job in question was based on the petitioner's age. 

CONCLUSIONS OF LAW 

The court, based upon the foregoing findings of fact, concludes, as a matter of law as follows: 

1 . That the Office of Administrative Hearings has jurisdiction over this case, the parties hereto and the subject matter 
thereof 

2. The petitioner has demonstrated, by a preponderance of the evidence, a prima facie 

case of age discrimination under the requirements of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) by demonstrating the 
following: 

(a) that he was in an age group protected by the ADEA (over 40 years of age); 

(b) that he was not selected for a promotion for which he was qualified and eligible; 

(c) at the time of his failure to be selected, he was performing his job at a level that met his employer's 
legitimate expectations; and 

(d) that someone outside of the class (and substantially younger than himself) was selected for the position. 

3. The employer, the Department of Transportation, has failed to produce non-pretextual evidence that there was a 
legitimate business reason for the selection made in this case. Specifically, from the facts found above, the petitioner has demonstrated 
that he was more qualified for the position than the selectee herein, that he had significantly more relevant supervisory experience 
than the selectee herein, that he had significantly greater educational background, that he had significantly more experience in the 
various aspects of the requirements of the job. that he had significant supervisory skills, and that he had no difficulty getting along 
with people or workers on the job, and that therefore, the employer's alleged reasons for the selection were pretextual. 

1975 NORTH CAROLINA REGISTER June 1, 1999 13:23 



I 



4 



CONTESTED CASE DECISIONS 



4. Furthemiore. the court concludes as a matter of law that this case is a "mixed motive" case under the Supreme Court 
decision in Price IValerhouse v. Hopkins. 390 U.S. 228 (1989). 

5. The court concludes, as a matter of law. that the petitioner in this matter has presented sufficient direct evidence 
of age discrimination, which constitutes an illegitimate motive on behalf of the emplover. 

6. Based upon the findings of fact cited herein above, the court specifically concludes, that the petitioner has 
demonstrated, by direct evidence, that this illegitimate motive played a part in the selection by Mr. Pope of a younger individual to 
tin the job in question. 

7. The Department of Transportation, because it is a mixed motive case, has the burden of demonstrating, by 
affirmative evidence, and by a preponderance thereof, that age was not a motivating factor in the Department of Transportation's 
decision to not select the petitioner herein (see 42 U.S.C. § 2000e-2(m). Civil Rights Act of 1991 ). 

8. The petitioner has demonstrated, by a preponderance of the evidence, that the direct comments concerning his age 
and the age of other workers, coupled with the other evidence presented in this case, including specifically the evidence of Pope's past 
record of promotion, the lack of a structured interview, or interview for the job. and the direct comments made by Pope to the 
petitioner herein concerning his age substantiates the fact that the selection in question b> Pope was substantially motivated by 
petitioner's age. 

9. The court concludes, also, as a matter of law. and by a preponderance of the evidence, that Pope had a personal bias 
against the petitioner herein, as evidenced by the comments made on the form submitted concerning the selection in this case in respect 
to the petitioner, and as evidenced by the matters appearing in the petitioner's personnel record without his knowledge, and as 
evidenced by the petitioner having to petition for removal of an old warning from his record. The court, however, finds that the 
respondents have failed to prove, however, that this factor would have resulted in the non-selection of petitioner, had it not been for 
the additional factor of his age. 

10. The court, therefore, concludes as a matter of law. that the respondents have failed to establish the affirmative 
defense under the Civil Rights Act of 1991 and the Price Waterhouse case that they did not rely upon age in respect to the selection 
in this case. 

1 1 . The court concludes as a matter of law that the respondents herein have engaged in discrimination based on age, 
as prohibited by the Civil Rights Act of 1991. in respect to the their failure to select the petitioner for the Transportation Technician 
IV position for which he applied in the early part of 1997. 

RECOMMENDED DECISION 

BASED UPON THE FOREGOING, the court recommends that the State Personnel Commission adopt this Decision, and 
enter the following relief 

1. That the petitioner be placed in the next available Technician IV position or a substantially equivalent position 
within Division I of the Department of Transportation which becomes available. 

2. That the petitioner be awarded all back pay computed in accordance with the rules established by the State Personnel 
Commission for the computation thereof and all back benefits, retroactive to the time he should have been selected for the position 
in question in February, 1997. 

3. That the petitioner be awarded front pa>, as computed under the rules of the State Personnel Commission, until he 
is laced in the next available Technician IV position within Division I of the Department of Transportation. 

4. That the petitioner be awarded all of his costs and attorney's fees. 

5. That the Department of Transportation, and specifically Division 1 thereof be prohibited from engaging in any other 
acts of discrimination directed towards the petitioner herein, or any other retaliation against the petitioner herein for the filing of his 
grievance, this contested case, or any other matter associated with this proceeding. 

6. That the petitioner be granted any other relief the State Personnel Commission deems appropriate in respect to this 
matter. 



13:23 NORTH CAROLINA REGISTER June I, 1999 1976 



CONTESTED CASE DECISIONS 



NOTICE 

The final decision in this contested case will be made by the State Personnel Commission. The parties have the right to file A 
exceptions to this recommended decision and to present written arguments to this agencv. The agency will mail a copy of the final ^ 
decision to the parties, the attorneys of record and the Office of Administrative Hearings. 

This the 12th dav of March. 1999. 



Robert Roosevelt Reilly. Jr. 
Administrative Law Judge 



4 



< 



7977 NORTH CAROLINA REGISTER June I, 1999 13:23 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



C Ol NT^ OF GASTON 



IN THE OFFICE OF 
ADMINISTRATIN E HEARINGS 

98 0SP 1380 



LISA A. PHARR, MELINDA IVIALONE HEMBREE, 
and FREDIAS. HliDSON. 
Petitioner, 



GASTON COl'NT^ DEPARTMENT OF SOCIAL 
SERVICES. GASTON COL NT>, NORTH CAROLINA, 

Respondent. ^^^^^^^^ 



RECOMMENDED DECISION 



) 



The Petition commencing this contested case was tiled in the OtTice of Administrative Hearings on October 13. 1998. In 
the Petition, Petitioners allege that Respondent had a supervisory position become vacant, that each Petitioner desired to be promoted 
to this supervisory position, but that Respondent filled the position without posting the vacancy or giving Petitioners an opportunity 
to apply for it by filling the position as part of a settlement of a lawsuit against the department and county by a former employee. 
On December 11, 1998, Respondent filed a Motion to Dismiss, contending that it had the discretion to employ this remedy in 
settlement of a Section 1983 civil suit. 



RESPONDENT'S MOTION TO DISMISS 



On March 4, 1999, after certified mail notice, this case was brought on for hearing in Charlotte. North Carolina. Without 
taking any testimony. Respondent's Motion to Dismiss was argued by the parties. The parties stipulated on the record and in writing 
to the facts of the case. Also stipulated as fact was the resume of Petitioner Lisa A. Pharr. 

North Carolina General Statute 126-7. 1(a) provides, in pertinent part: 

(a) All vacancies for which any State agency, department, or institution openly recruit shall be posted 

within at least the following: 

(1) The personnel office of the agency, department, or institution having the 
vacancy and 

(2) The particular work unit of the agency, department, or institution having the 
vacancy.... 

State Personnel Rules governing the posting and announcement of vacancies provide, in pertinent part, as follows: 

...Posting requirements shall not apply to: 

( I ) Vacancies which must be used to meet management necessity, for which an 

agency will not openly recruit. Examples include vacancies committed to a 
budget reduction, vacancies used for disciplinar} transfers or demotions.... 

N.C. Admin. Code Tit. 25. r. 01H.0602(c) (December 1995). 

RECOMMENDED DECISION 

Having considered the stipulations of the parties in determining the Motion to Dismiss, I find that this Motion should be, 
and hereby is, treated as one for Summary Judgment under G.S. lA-l Rule 56. Having considered the Motion in the light most 
favorable to the nonmovant, 1 find that Respondent is allowed by G.S. 126-7.1 and Rule .0602(c) of the State Personnel Commission 
to fill the position at issue here without openly recruiting for applicants as part of a settlement of a section 1983 civil action against 
Respondent. Therefore, Respondent's motion should be, and hereby is. ALLOWED. 



13:23 



NORTH CAROLINA REGISTER 



June 1, 1999 



1978 



■[[][ i [ i .i[] i i[ ii i i i ii [][i ii» u. i jLuujUHUiiiujMi w»i ;wrai itiii i i|4iMi Li g«eg mmjaihll ll KMll.M>.'MJ.iJiT3; 



CONTESTED CASE DECISIONS 



ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, P.O. Drawer 
27447, Raleigh, NC 276 1 1 -7447, in accordance with North Carolina General Statute 1 50B-36(b). A 

NOTICE 

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions 
to this recommended decision and to present written arguments to those in the agency who will make the final decision. G.S. 150B- 
36(a). 

The agency is required by G.S. 1 50B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the 
parties" attorneys of record and to the Office of Administrative Hearings. 

The State Personnel Commission will issue an Advisory Decision in this case under the authority of G.S. 126-37(bl ). 

The agency that will make the final decision in this contested case is the Gaston County Department of Social Services. 

This the 7"' day of April, 1999 



Beecher R. Gray 
Administrative Law Judge 



♦ 



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